How to arrange for the enforcement of a breach of an obligation in Iranian law: The Convention on the International Sale of Goods and British Law

Document Type : Original Article

Authors

1 Assistant Professor, Department of Private Law, Faculty of Law and Political Science, University of Mazandaran, Babolsar, Iran.

2 Assistant Professor, Department of Law and Theology, Faculty of Humanities, Golestan University, Gorgan, Iran.

3 Assistant Professor Faculty of Law and Political Science at University of Mazandaran, Babolsar, Iran.

Abstract

According to the principle of the necessity of contracts (Article 219 of the Civil Code), the contracts concluded between the parties and their legal representatives are mandatory. Therefore, according to this principle, the parties are obliged to fulfill their contractual obligations, but in some cases, one of the parties to the transaction refuses to fulfill his obligation. in this case, the guarantee of various executions is considered in the law for breaching the obligation. In this research, the position of the civil law and the Convention on the International Sale of Goods and English law in this regard have been investigated. Regarding the guarantee of the executing the violation of the condition, the jurists have put forward different ideas, and the civil law, based on the famous opinion of the Imami jurists, guarantees the longitudinal and sequential execution (i.e., first, the obligation of the obligee, if it is not possible to oblige. In the second stage, the obligation is fulfilled at the obligee's expense, and finally, it has accepted the termination of the contract). However, in the Convention on the International Sale of Goods and English Law, breaching the obligation, the obligation of the obligee is to fulfill the obligation, if the obligee wishes to approve the court and depends entirely on the opinion of the court. The possibility of terminating the contract by the obligee is exceptional and those limitations are considered.

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References

1-    Adl, Mustafa (2006), Civil Law, Tehran, Taha Publications, second edition. (In Persian).
2-    Ameli (Shahid Sani), Zain al-Din bin Ali (1989), al-Rawzah al-Bahiyyah fi Sharh al-Lamaa al-Damshaqiyyah (Mohshi Kalanter), Qom, Davari Bookstore, first edition, third volume. (In Persian).
3-    Chengwei, Liu (2007), Remedies for Non-performance: Perspectives from CISG, UNIDROIT Principles & PECL, published in SiSU on behalf of CISG Database, Pace Institute of International Commercial Law.
4-    Cheshire Fifoot & Furmstoon, law of contract, Butterworths, 1986, 11th edition.
5-    David Barker & Colin Padfield (2007), law made simple, 2nd edition, Majd Publications.
6-    DiMatteo, Larry A & Dhooge, Lucien & Greene, Stephanie & Maurer, Virginia, Maurer & Pagnattaro, Marisa (2005), International Sales Law: A Critical Analysis of CISG Jurisprudence, Cambridge University Press (September 5).
7-    Emami,Seyyed Hasan (1985), Civil Law, Tehran, Islamic Bookstore Publications, 5th edition, 2nd volume. (In Persian).
8-    Erauw, Johan & Flechtner, Harry M (2001), Remedies Under the CISG, in Petar Sarcevic & Paul Volken, The International Sale of Goods Revisited, Kluwer Law International.
9-    Ferrari, Franco(2006), "Fundamental Breach of Contract Under the UN Sales Convention, 25 Years of Article 25 CISG", Journal of Law and Commerce, Spring, Pp 489-508.
10-    Flechtner, Harry M (1988), Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C., Journal of Law and Commerce, Pp 53-108.
11-    Flechtner, Harry M.,(2005), Buyers' Remedies in General and Buyers' Performance-Oriented Remedies, 25 Journal of Law and Commerce, 339-347.
12-    Honnold, John O (1999), Uniform Law for International Sales under the 1980 United Nations Convention, Kluwer Law International, 3rd Edition.
13-    Hosseini Maraghi, Mir Abd al-Fattah (1997), Anavin, Qom, Islamic Publication Institute, first edition, second volume. (In Persian).
14-    Huber, Peter & Mullis, Alastair, (2007), The CISG A new textbook for students and practitioners; Germany: Sellier. European law publishers.
15-    Huber, Peter (2005), CISG- The Structure of Remedies, ( Rabels Zeitschrist für ausländisches und internationales Privatrecht) , Presentation at seminar: "The Convention on the International Sale of Goods. The 25th Anniversary: Its Impact in the Past; Its Role in The Future", German Society of Comparative Law, Private Law Division, Conference 2005 (22-24 September) Wurzburg.
16-    Katouzian, Nasser (2004), Civil Law - Legal Practices, Tehran, Publishing Company, 10th edition. (In Persian).
17-    Katouzian, Nasser (2006), Special contracts, Tehran, Ganj Danesh, 7th edition, 2nd volume. (In Persian).
18-    Katouzian, Nasser (2007), General Rules of Contracts, Tehran, Publishing Company, 5th edition, 3rd vol ume. (In Persian).
19-    Lookofsky, Joseph,(2000),  The 1980 United Nations Convention on Contracts for the International Sale of Goods,  Kluwer Law International, The Hague. 
20-    Magnus, Ulrich, (2005), “The Remedy of Avoidance of Contract Under CISG - General Remarks and Special Cases”. Journal of Law and Commerce, vol. 25
21-    Najafi Esfahani, Mohammad Hassan (1983), Javaher al-Kalam fi Sharh Shar'e al-Islam, Beirut, Dar Ihya al-Tarath al-Arabi, 7th edition, 23rd volume. 
22-    Safaei, Seyed Hossein (2006), Civil Law Preliminary Course, General Rules of Contracts, Tehran, Mizan Publishing House, 4th edition, 2nd volume. (In Persian).
23-    Safai, Seyyed Hossein and others, International Sales Law with a Comparative Study, Tehran University Publications, 2014, first edition. (In Persian).
24-    Schlechtriem, Peter (1986), Uniform Sales Law- The UN-Convention on Contracts for the International Sale of Goods, Published by Manz, Vienna.
25-    Schlechtriem, Peter (2002), The German Act to Modernize the Law of Obligations in Europe, Oxford University Comparative Law Forum.
26-    Shahidi, Mehdi (2007), Civil Laws of Contract Conditions, Tehran, Majd Publications, second edition, fourth volume. (In Persian).
27-    Sheikh Ansari (1959), Kitab al-Makasab, Qom, Dar al-Hikma, second edition, fourth volume. (In Persian).
28-    Smith, J.C & Thomas, Acasbook on contract; Sweet & Maxweel 1992. 9 th edition.
29-    Taheri, Habibullah (1997), Civil Law, Qom, Islamic Publications Office affiliated to Qom Seminary Teachers Society, second edition, fourth volume. (In Persian).
30-    Treitel, G.H, law of contact, Sweet & Maxwell, 1995, 9th edition.
31-    UNCITRAL Digest Of Case Law on The United Nations Convention on Contracts for the International Sales of Goods(2012 Edition), United Nations Commision on International Trade Law.
32-    Viscasillas, Pilar Perales (2005), The Nachfrist Remedy, Presented in "Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods" (Collation of Papers at UNCITRAL -- SIAC Conference 22-23 September,  Singapore International Arbitration Centre.
33-    Yovel, Jonathan (2005), Buyers Right to avoid the contract: Comparison between provisions of the CISG (Article 49) and the counterpart provisions of the PECL (Articles 9:301, 9:303 and 8:106), Cambridge University Press.
34-    Zeller, Bruno  (2007), The Remedy of Fundamental Breach and The United Nations Convention on the International Sale of Goods (CISG) – A Principle Lacking Certainty? , Vindobona Journal of International Commercial Law & Arbitration 2.  
35-    Zumbansen, Peter (2005), The Law of Contract, In Zekoll, Joachim and Reimann, Matthias, Introduction to German Law, Hague: Kluwer Law International.
Journal of Comparative Law
Volume 6, Issue 2 - Serial Number 10
October 2022
Pages 165-183

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History

  • Receive Date: 07 February 2021
  • Revise Date: 26 March 2021
  • Accept Date: 02 July 2021

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