Judicial Intervention in Value Equilibrium based on economic analysis of consideration; A Solution to Deviate from Monopoly of Termination

Abstract

One of the elements of contracts containing bilateral financial obligations is the equilibrium in the value of the consideration. "Equilibrium" is the product of the correct (correct, complete, timely) performance of all financial obligations affecting the value of the considerations. However, sometimes financial obligations are not properly performed due to factors like ignorance, delay, violation, impossibility, a fundamental change of circumstances, etc. And the equilibrium of value expected by the parties will be disturbed. Legal texts and jurisprudential and legal opinions mention granting the right of termination as the only remedy to deal with this defect. However, accepting the monopoly of termination, considering its basis, is associated with problems. The impediment to the survival of the contract on the one hand, and the disadvantages of terminating the contract as an exclusive sanction of the imbalance, on the other hand, show the necessity of an alternative way. The present article uses a library method. To prepare an alternative way after examining the intellectual underpinnings such as the theory of contract maintenance and its comparative study, by presenting an economic analysis of the transaction, applying the La Zarar rule, while overcoming possible barriers to recourse. In parallel, it proposes a judicial intervention strategy to return to the equilibrium requirements of the value desired by the parties by relying on an interpretation of the intentions of the parties or a reference to legal principles. In this regard, this article first studies the different dimensions of the concept of balance in the value of waste. Then, explaining the principles of deviating from the monopoly of termination in case of imbalance and doubt in its obstacles, provides the necessary ground for accepting judicial intervention as a solution within the termination of the contract.

Keywords

• equilibrium in the value of the consideration
• termination of the contract
• contract maintenance
• judicial intervention
• legal principles