Seyed Hassan shobeiri; Abdulkhaleq Qasemi
Abstract
According to Afghan law, the Islamic jurisprudence and international instruments on law of contracts the non-performing party has to compensate the losses of the aggrieved party in a way that if the contract had been performed properly, he would be in such a situation. Therefore, despite the well-known ...
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According to Afghan law, the Islamic jurisprudence and international instruments on law of contracts the non-performing party has to compensate the losses of the aggrieved party in a way that if the contract had been performed properly, he would be in such a situation. Therefore, despite the well-known disagreement of the jurists, the aggrieved party can claim loss of profit, provided that it is not fictitious and be principally receivable. Similarly, the spiritual damage, in spite of some disagreements in Islamic jurisprudence and international instruments, is supposed to be payable and transferable to other persons. Damage of delay payment, despite the controversy in the Islamic jurisprudence as a result of the depreciation of the value of the money, is claimable and in Afghanistan's law is limited to three percent of the total annual debt. Albeit, when obliging of the non-performing party for compensating of the loss is possible that the damage resulting from the breach of contract is definitive, arising from the breach of the contract, and be foreseeable at the time of the conclusion of the contract, and in Afghanistan's law, the performance by the obligee has been made.
Mohammad Bagher Parsapour; Seyed Milad Hosseini; Ahad Shahi
Abstract
There are different methods of compensating the promisee for the breach of obligation under the Shiite Jurisprudence, the Iranian Law, and some important international commercial mechanisms. These should be distinguished from preventive measures for avoiding obligation breach. The remedies stated in ...
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There are different methods of compensating the promisee for the breach of obligation under the Shiite Jurisprudence, the Iranian Law, and some important international commercial mechanisms. These should be distinguished from preventive measures for avoiding obligation breach. The remedies stated in the Iranian Legal System and also the mechanisms mentioned above could regularly be categorized as “common remedies” and “special remedies.’ By common remedies one means those that have been set forth in the international mechanisms and the Iranian Law, such as requiring specific performance of an obligation. On the other hand, special remedies are those that have been laid down explicitly by international mechanisms and have not yet been incorporated into the Iranian Legal System, for instance the reduction in the price of goods. In addition, in some cases, several remedies arise as a result of the breach of contractual obligation which, regardless of their legal or contractual origin, some consistent ones could be implemented simultaneously. A majority of important international mechanisms such as the Convention on International Sale of Goods, the Principles of European Contract Law and still some others, have explicitly recognized the general rule of the cumulativeness of remedies for promisees. These are different from their Iranian counterparts. However, the approaches taken by the above mechanisms are not turned down by the Iranian Civil Code, as their content could be inferred from the wholeness and integrity of the mentioned law. The convincing reason here would lead us to agree with the cumulative remedies as the following in the Iranian legal system: the right to claim payment for delay in contract performance with the right to rescind the contract or the right to specific performance and also the cumulation of the right to claim non-performance compensation with the right to rescind the contract.