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Paper Information

Journal:   THE JUDICIARY’S LAW JOURNAL   spring 2018 , Volume 82 , Number 101 ; Page(s) 187 To 211.

The Comparative Study of the Notion and the Measures of the Fundamental Breach of Contract

Author(s):  GHASEMI RASOOL, mahdavi sayyed mohammad hadi, Nasirian Davood
Due to exchanged contracts، failing to perform the obligation by each of the parties leads to the breach of contract. According to the principles of international commercial contracts and international convention on sale of goods، the obligee can terminate the contract for fundamental breaches. Violation of fundamentals depends on the form of obligation and the importance of harmful consequences arising from violation. But in the convention on sale of goods، fundamental violation of contract is merely depends on contract violation. In Iranian legal system، there is no meaning for fundamental violation and the sanction of breach of contract depends on the contract subject. If the contract subject is definite object so according to the case، one of the legal options in the civil justice system will be used but if contract subject is thing of a general nature، act or forbearance، the obligate is bound to fulfillment of certain obligation، otherwise the obligee has the right to terminate the contract. According to some of law articles and jurists vote، the primary termination theory can be accepted beside the provisions of international commercial contracts and international convention on sale of goods so in Iranian legal system، recognition of termination right arising from fundamental termination of contract is consistent with legal and religious principles. To comparative study of fundamental termination، two factors should be considered: variety in sanctions of contract termination and respect to aggrieved party. These factors should be considered in domestic law as the basis of the rules amendment.
Keyword(s): Fundamental Breach,Termination,Bounding to Fulfillment of Certain Obligation,Compensation,Lien
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