The Bases and the Difference of Remedy of Failure to Perform the Contractual Obligations in Iran‘s Law, Shiite Jurisprudence, and France‘s Law
Document Type : Specialized Article
Authors
1 Assistant Professor, Faculty of Law, Zanjan University
2 MA in Private Law
Abstract
When someone accepts an obligation and bears its responsibility, it’s expected that the other party would also fulfill his/her obligations. When one of the parties refuses to perform the contract on their own volition, the prevailing theory in Iran’s law is that the judge, by the promisee’s request, will force the refusing party to deliver goods or perform the contract’s obligations in proportion to the issue. If the compulsion on the contractual party was not effective, the beneficiary of the contract could perform the contract’s subject at the promisor’s expense in the contracts, which do not rely upon people’s personalities, and if all these tricks did not work, it would be the turn to rescind the contract. However, in most legal systems of the world the right to force the promisor by the promisee and the right to rescind the contract are beside each other. In Shiite jurisprudence, there are firm and cogent views that prove the right to rescind the contract along with the right to force the promisor to perform the contract for the promisee in the case of the promisor’s refusal to perform the contract. There is no stipulation of rules regarding this issue in Iran’s Civil Code. In fact, there is no general rule in this respect, but this matter has been mentioned in the conditions chapter and some legal articles. Most Iranian lawyers are inclined to the Linear Theory (first compulsion then rescission) in the course of performing a contract, but the Transverse Theory is also provable based on the generalities of the Civil Code.
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