Specific Performance and its Barriers in Islamic Jurisprudence and Different Legal Systems

Abstract

Abstract The purpose of forming a contract is realizing the joint volition and fulfilling of its consequent obligations. In the event of a breach, in the Romano-Germanic system of law, Iran and some other countries, the obligation of the covenantor to fulfill the specific performance has been recognized as a fundamental principle and the covenantee, only in the case of the impossibility of obliging the covenantor, can take action to terminate the contract and claim for damages. In Common Law, obliging to specific performance is accepted as an exception and only in certain cases. In this article, the right to choose the most appropriate means of achieving the contractual purpose and securing the covenantee's interests including the request to specific performance or termination of the contract or claim for damages, or changing or replacing the obligation are preferred in terms of basis and economic efficiency. As in the new international instruments such as the Principles of International Trade Contracts (2016), the Principles of European Contract Law, the draft Common European Sales Law, the Civil Code of France (2016), the Civil Code of the Netherlands and Germany and the UK Consumer Rights Act (2015), the right and freedom of the beneficiary to choose the method for confronting the breach of the contract and remedy are accepted. The obligation to specific performance, whether being accepted as a principle, or an exception or a power, may be subject to two categories of barriers and restrictions arising from the status and nature of the obligation or circumstances after the conclusion of the contract.

Keywords

• obliging the covenantor
• specific performance
• breach of the contract
• compensation
• obstacles