A comparative study of the implementation of the same obligation in English law, Imami jurisprudence, Iranian law and Iraqi law

Document Type : Original Article

Authors

1 Assistant Professor of the Department of Law, Faculty of Human Sciences, Damghan University

2 Faculty of Islamic Sciences and Researches, Department of Islamic Jurisprudence and Fundamentals of Islamic Law, Imam khomeini international university, Qazvin, Iran

Abstract

One of the existing performance guarantees in the field of contractual liability is "forcing the obligee to perform the obligation". In the legal system of Iran and Iraq, the principle of the possibility of forcing the fulfillment of obligations in cases of breach of obligations by the obligee has been accepted. In cases where the performance of the same obligation is impossible, the obligee is given the option of terminating the contract and receiving damages. Also, as a supplementary method, in cases where the provisions of that obligation have a condition of supervision in the implementation by the obligee, it is possible to determine the period and amount for receiving damages by the court. But in the British legal system, coercion has been accepted as a principle, and due to some reasons, it faces many limitations. This performance guarantee can only be achieved based on the rules of fairness and when the order to pay damages cannot fully compensate the plaintiff's losses, and the most important rule for resorting to it is "inadequacy of damages". According to Iraqi law, it is also mandatory to perform the same obligation in contracts, except in exceptional cases and events where the court can, after examining the interests of the parties, reduce the harmful obligation as long as justice requires, and any agreement contrary to this provision It is forbidden.


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