Rouhollah Rezaei; Ebrahim Abdipour Fard; Esmail Nematollahi
Abstract
Breach of contract may occur by the fault of party in breach. There is a variety of degrees in contractual fault and the highest degree of fault is intentional one. The breach of contract is considered to be intentional when the party in breach calculates the financial costs and benefits of the breach ...
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Breach of contract may occur by the fault of party in breach. There is a variety of degrees in contractual fault and the highest degree of fault is intentional one. The breach of contract is considered to be intentional when the party in breach calculates the financial costs and benefits of the breach and then decides not to perform his/her contractual obligations. The notion of intentional breach and its consequences are recognized in common law and civil law and also in some European instruments such as PECL and DCFR. The intentionality of breach is considered to be relevant in above jurisdictions and instruments. For example, in the case of intentional breach, common law courts allowed the specific performance. They sometimes refused to mitigate the amount of penalty clauses and to recognize the exemption clauses in favor of the breaching party. Also, in civil law jurisdictions the intentional breach works as an allowance for unforeseeable damages. The hypothesis of this contribution is that in the case of intentional breach, courts must take a stricter approach than the usual breach and they should seek to improve the position of the creditor in terms of accessing to contractual remedies.
Ebrahim Shoarian Sattari; Roya Shirin Beigpour
Abstract
A breach of an obligation is the requirement for imposing a contractual liability in all legal systems. Such a breach could be dealt with by a series of remedies such as specific performance, termination of the contract and claim for damages. These remedies could be relied upon concurrently as far as ...
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A breach of an obligation is the requirement for imposing a contractual liability in all legal systems. Such a breach could be dealt with by a series of remedies such as specific performance, termination of the contract and claim for damages. These remedies could be relied upon concurrently as far as they are cumulative in nature. Nevertheless, in some circumstances the adequacy of these remedies is in doubt to address such breaches and bad faith. In order to deal with such situations, some international instruments such as UNIDROIT Principles of International Commercial Contracts (UPICC), the Principles of European Contract Law (PECL) and also the Draft Common Frame of Reference (DCFR) have established some specific rules and imposed different and greater liability for breaching contractual obligations or bad faith in order to support the other party and have a deterrent role. In other words, the aggrieved party is not limited to anticipated damages, or in some cases it is possible to demand punitive damages. This article, through a comparative analysis, attempts to examine whether the same rules could apply under Iranian law or not.
