A Study of Possibility of Judicial Discretion to Refuse Specific Performance in Dutch and Iranian Law

Although, according to Roman principle, "The Agreements Must be Kept"-which is inspiring for Dutch Civil Law- the priority of enforcing the Specific Performance over compensation and termination has been accepted,  due to silence of law about it, the Supreme Court of this country, restricts its application to 2 items subsidiarity and proportionality. This means that whenever the judicial authority is able to eliminate the impediment caused by breach of the contract by using compensatory methods such as issuing a verdict for payment of damages and termination, it can refuse to issue a verdict for specific performance and gives such a decision only when the benefits that the creditor gets in this way are proportional to the losses incurred by the debtor. In Iranian law, in spite of some texts - which indicate the need to fulfill the contract and terms and conditions, and according to some opinions, the refusal of the court to issue a verdict for specific performance, before the impossibility of its performance is impossible-, In case there is no balance between the interests of the creditor and the loss of the debtor, rules such as no-hardship and no-harm leave the court free to refrain from issuing a judgment to enforce the specific performance.