Effect of Violating the Contractual Obligations in Emergence of the Avoidance: A Comparative Study of Iranian Law and Some Islamic and Western Legal Systems

Abstract

There is a question regarding violating contractual obligations: whether the avoidance of the contract is acceptable as a remedy? And if the answer is positive, does the court play a role in applying the avoidance or promisee can abolish it by himself? Also is judicial enforcement to specific performance the prerequisite of the avoidance or both of them are in the same level? This research, through a descriptive-analytic and also comparative method, has studied this issue in Iranian and Iraqi law (as two members of Islamic legal system) and the 1980 Convention on Contracts for the International Sale of Goods and French Law (as examples of the western legal system) as well. The studies demonstrate that the possibility of avoidance is accepted in all of these legal regimes, however, there are some differences in the scope of avoidance and interference of the court in it and also horizontal or vertical relation of the abolition with enforcing the promisor to specific performance. In Iranian law, in principle, judicial enforcement of the promisor to specific performance is the prerequisite of the emergence of avoidance while in Iraqi law, the Convention and French law enforcing to specific performance and the avoidance are in the same level. In Iraqi law avoidance is performed through the intervention of the court but in the Convention, French law and Iranian law avoidance is possible unilaterally and without recourse to the court; nevertheless there are some differences among these legal systems in details.

Keywords

• islamic law
• law of the west
• judicial enforcing to obligation
• court intervention in avoidance
• convention on contracts for the international sale of goods
• breach of contractual obligations