An Analysis of Civil Sanctions of Personal Obligations in the Iranian Law, Fiqh and Principles of International Commercial Contracts

Document Type : Academicm and Research

Authors

1 Assistant Professor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan.

2 PhD Graduate in Private Law, University of Isfahan.

10.22091/csiw.2022.6303.1963

Abstract

Obligations are of two types: personal and non-personal. Generally, obligations are not bound to the obligator’s character, and in effect, the he will be obliged to fulfill the specific performance should he refuse the performance of non-monetary obligations. In Article 2-2-7 of the UNIDROIT Principles of International Commercial Contracts (UPICC), the rule of specific performance the same non-monetary obligation is acknowledged; however, in Clause D of the Article, as acknowledged in the regulations of many countries, performance of an exclusively personal obligations is excluded. Art. 239 of the Iranian Civil Code maintains "if the obligator cannot be convinced to perform the subject of the contract and it might not be performed by a third party either, the other party will hold the right to terminate the contract. Art. 729 of the Code of Civil Procedure of 1939 considered the performance of an exclusively personal obligation mandatory- which was repealed in 2000. Yet, drawing on the same Art., Art. 47 of the Law on Execution of Civil Judgments of 1978 considers the performance of an exclusively personal obligation mandatory. Recruiting a descriptive-analytical design, the current study investigates the sanctions for the performance of personal obligations in the international trade documents as they arranged in line with the domestic laws of the countries party to the agreements. Findings suggest that the elimination of sanctions in the implementation of Art. 47 of the Law on Execution of Civil Judgments, the impossibility of specific performance and execution of the judgement in such obligations, and considering the right of termination for the party in loss are consistent with the new legal and Fiqhi standards on this type of obligation.

Keywords

Main Subjects

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Comparative Studies on Islamic and Western Law
Volume 9, Issue 4 - Serial Number 34
December 2023
Pages 211-238

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