The right of non-performance at the reciprocal ‎obligations

The right to non-performance is mentioned in Articles 377 and 378 of the Civil Code on the subject of sale, as well as in the section on marriage in Articles 1085 and 1086 of the same and in Article 371 of the Commercial Code. According to these articles, either party can refuse to fulfill its obligation in order to urge the other party to fulfill the latter’s obligation. The right to non-performance can be defined as the right of the parties to refuse to fulfill their obligation in order to oblige the other party to fulfill his obligation. This right, which is based on reciprocal justice and the common sense, has been accepted as one of the methods of compelling the fulfillment of contractual obligations in Imami fiqh and in civil law. Article 377 of the Civil Code gives each seller and buyer the right to refuse to surrender the item of sale and the price, respectively, until the other party agrees to surrender. According to this article, the creation of the right of non-performance for the parties to the contract is subject to the following conditions: a) the contract involves an exchange, that is, two mutual obligations; b) the two obligations are supposed to be fulfilled at the same time: this means that the right to non-performance exists either when bothobligations are to be fulfilled immediately once the contract is made or, and based on a broader interpretation of the relevant rules, when the two obligations are agreed to be done at the same time in future.But with regard to the scope of its application, there has been some dispute as to whether this right constitutes an exception to a general rule, hence having to be limited to the contract of sale and to the exchange of the item of sale and the price in it. This probability is supported, on the one hand, by the fact that the right to non-performance is mentioned in the Chapter on Sale, and on the other hand, by considering that, although the right to non-performance is possible in exchange contracts, the bond between the two obligations will be lost as a result of termination or cancellation of the contract and the returning of the objects of the two obligations does not stem from the contract itself, but is a general duty directly imposed by the rule that prohibits individuals from possessing other people’s property without the owner's permission. In addition, the termination of an exchange contract discontinues the mutual obligations of the parties, hence leaving no subject-matter for the right to non-performance, and the parties’ duty to return the items is not the result of the contract, but represents the obligation to give others’ properties back to them. A different view is that the right to non-performance is a general rule in exchange contracts, which is discussed, as is the general practice in the Islamic legal treatises, in chapters on sale as an example of a general rule. A third hypothesis is that the right to non-performance should not be limited to contracts and has to be applicable in all reciprocal obligations, even those imposed directly by law irrespective of the parties’ will.  Therefore, this study seeks to answer the question whether the right to non-performance is applicable to all reciprocal obligations regardless of their source- contracts, tort liability or other rules. This descriptive-analytical study hypothesized that failure to recognize the right to non-performance at the stage of dissolution of the contract and other reciprocal obligations is contrary to the principle of the transactional justice and causes problems and unfair consequences when the items of the contracts are returned. Arguing that there is nothing that limits the right of non-performance in the stage of fulfillment of obligations, this article argues that this right exists not only in the stage of concluding contracts, but also in the stage where they are dissolved and the items are returned to their original owners, and also in mutual obligations arising from civil liability rules. The custom and the common sense does not warrant the differentiation between the stage of concluding a contract and its dissolution in both of which the parties are mutually committed to hand over the items to each other. The right to non-performance in the stage of dissolution of the contract exists according to the common implicit intention of the parties, whose authority is indisputably upheld by the custom especially the field of international trade, which gives it the same status as what is stipulated in the contract (Article 225 of the Civil Code). Thus, considering the need to study the principles of  the right to non-performance and its conditions and obstacles, this article will first explore the concept of the right to non-performance and its bases and conditions in general and will then focus on the principles applying to, the conditions of exercising, and the effects of the right to non-performance in the stage of the dissolution of the contract and its mutual obligations.A review of the Islamic legal literature shows that the courts have accepted a broader interpretation of the scope of the right to non-performance. Some of the court decisions upholding the termination of the contract of sale have made the return of the sale item to the seller conditional on the refund of its price to the buyer. It should be noted that there are two conditions for exercising the right to non-performance in the stage of dissolution of the contracts: first, there must be two mutual obligations; second, they must have the same cause. The article will, thus, propose the scope of the right to non-performance in the Civil Code to be amended, and the right to non-performance to be recognized as a general rule applicable to the conclusion and termination of all obligations according to which in all exchange contracts, in both stages of conclusion and dissolution, as well as in all non-contractual mutual obligations which have to be performed simultaneously, each party can make the fulfillment of his obligation conditional on the fulfillment of the other's obligation.