Document Type : research
Authors
1
PhD Student in Private Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran
2
Associate Professor, Department of Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran
10.22034/ejs.2023.389964.1402
Abstract
Background and Aim: If the obligor refuses to perform the contract and causes damage to the obligee, its primary legal performance guarantee in jurisprudence and law is the compulsory specific performance of an obligation, but the common practice is the necessity to go through the process of binding the obligee through the court as a necessary prelude to claiming damages. In Iranian law, it gives the obligee the possibility of an economic evaluation between the performance of the obligation and the subsequent payment of damages; therefore, the ability to claim damages in the assumption of the obligee's voluntary refusal to perform an obligation that it is possible to perform is the issue of research.
Materials and Methods: This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.
Ethical Considerations: In this article, Originality of texts, honesty and trusteeship Has been complied with.
Results: jurisprudence and law respectively consider the obligee's refusal to be a forbidden act, a violation, and a mistake, which requires punishment and liability, and the requirement of jurisprudential evidence of presumption of irrevocability in the sense of the necessity of adhering to the consequence and results of the contract, the common sense, the rule of prohibition of detriment and Sharia ruling of Consideration is not only that the obligee is bound by the specific performance as long as the obligee mutually adheres to it, but in the case of the obligee's refusal, the preliminary judgment is removed and the claim for actual damages is possible.
Conclusion: According to the jurisprudence records, the Iranian legislator, by mentioning the provisions of contractual damages under the chapter on the effect of transactions, has an opinion on the real concept of damages, which is the exact consideration of the specific performance of an obligation, and to claim damages, it is not necessary to go through the legal process of compulsory performance of the obligation and termination, and actual damages should be considered different from contractual damages as a result of contract dissolution.
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