EXAMINING THE EFFICIENCY OF PRIORITY OF THE “SPECIFIC PERFORMANCE” OVER “TERMINATION OF CONTRACT” IN RESPECT OF HISTORICAL, ECONOMIC AND PHILOSOPHICAL ANALYSIS OF ISLAMIC LAW

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ANSARI ALI; SHAHI DAMANJANI AHAD

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Journal: Jurisprudence and Fundamentals of Islamic Law Year:2018 | Volume:50 | Issue:2 Page(s): 261-279

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Title

EXAMINING THE EFFICIENCY OF PRIORITY OF THE “SPECIFIC PERFORMANCE” OVER “TERMINATION OF CONTRACT” IN RESPECT OF HISTORICAL, ECONOMIC AND PHILOSOPHICAL ANALYSIS OF ISLAMIC LAW

Author(s)

ANSARI ALI | SHAHI DAMANJANI AHAD | Issue Writer Certificate

Keywords

CONTRACTUAL OBLIGATIONSQ1

BREACH OF OBLIGATIONQ2

SPECIFIC PERFORMANCEQ2

TERMINATION OF CONTRACTQ1

HISTORICAL JUSTIFICATIONSQ1

ECONOMICAL REMARKSQ1

PHILOSOPHICAL PRECONCEPTIONSQ1

Abstract

According to the widely-Known viewpoint of Imamiyya jurisprudents, the SPECIFIC PERFORMANCE is prior to the TERMINATION OF CONTRACT, and if the enforcement of the obligor to perform his obligation is not possible due to the necessity of expertise in doing so, the obligee can terminate the contract. Also Iran’s Civil Code has followed this doctrine in Art. 237-239 and 476. The present article, based on the historical, economic and philosophical analysis of Islamic Law, examines and proves that the enforced obligor to SPECIFIC PERFORMANCE and its primacy to the TERMINATION OF CONTRACT in Imamiyya jurisprudence does not have the necessary efficiency and there is no acceptable legal-jurisprudence justification and it is based on the economic and philosophical interest of jurisprudents, so that clear ruling of traditions. As the finding of the present article, it is proposed to the legislator in the discussion of breach of contractual obligation to anticipate a set of remedy that all of them can be applied across the board. In the event of a BREACH OF OBLIGATION, the obligee can choose a remedy that prepares favorably his benefit. Thus the costs and expenses of such a breach haven’t been transferred to society and the consequences of this breach have been managed within the contract by the two parties.

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APA: Copy

ANSARI, ALI, & SHAHI DAMANJANI, AHAD. (2018). EXAMINING THE EFFICIENCY OF PRIORITY OF THE “SPECIFIC PERFORMANCE” OVER “TERMINATION OF CONTRACT” IN RESPECT OF HISTORICAL, ECONOMIC AND PHILOSOPHICAL ANALYSIS OF ISLAMIC LAW. FEQH VA MABANI-YE HOQUQ-E ESLAMI (IRANIAN JOURNAL FOR JURISPRUDENCE & ESSENTIALS OF THE ISLAMIC LAW) (MAQALAT WA BARRASIHA), 50(2 ), 261-279. SID. https://sid.ir/paper/198469/en

Vancouver: Copy

ANSARI ALI, SHAHI DAMANJANI AHAD. EXAMINING THE EFFICIENCY OF PRIORITY OF THE “SPECIFIC PERFORMANCE” OVER “TERMINATION OF CONTRACT” IN RESPECT OF HISTORICAL, ECONOMIC AND PHILOSOPHICAL ANALYSIS OF ISLAMIC LAW. FEQH VA MABANI-YE HOQUQ-E ESLAMI (IRANIAN JOURNAL FOR JURISPRUDENCE & ESSENTIALS OF THE ISLAMIC LAW) (MAQALAT WA BARRASIHA)[Internet]. 2018;50(2 ):261-279. Available from: https://sid.ir/paper/198469/en

IEEE: Copy

ALI ANSARI, and AHAD SHAHI DAMANJANI, “EXAMINING THE EFFICIENCY OF PRIORITY OF THE “SPECIFIC PERFORMANCE” OVER “TERMINATION OF CONTRACT” IN RESPECT OF HISTORICAL, ECONOMIC AND PHILOSOPHICAL ANALYSIS OF ISLAMIC LAW,” FEQH VA MABANI-YE HOQUQ-E ESLAMI (IRANIAN JOURNAL FOR JURISPRUDENCE & ESSENTIALS OF THE ISLAMIC LAW) (MAQALAT WA BARRASIHA), vol. 50, no. 2 , pp. 261–279, 2018, [Online]. Available: https://sid.ir/paper/198469/en

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