نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه حقوق خصوصی، واحد ساری، دانشگاه آزاد اسلامی، ساری، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Although, according to Roman principle, "The agreements must be kept"-which is inspiring for Dutch Civil Law- the priority of enforcing the obligation over compensation and termination has been accepted, However, due to silence of positive laws about it, the Supreme Court of this country, restricts its application to both subsidiarity and proportionality. This means that whenever the judicial authority is able to eliminate the impediment caused by breach of the contract by using compensatory methods such as issuing a sentence for payment of damages and termination, it can refuse to issue a sentence for specific performance and decides such a sentence only when the interests of the creditor derives from this are proportional to the losses incurred to the debtor. In Iranian law, in spite of some texts - which indicate the need to fulfill the contract and clauses, and in the opinion of some, the refusal of the court to issue a sentence for specific performance, before the impossibility of its performance- is impossible, there seem to be rules such as denying hardship and no harm. In the absence of a balance between the creditor's interests and the debtor's losses, the court is left free to enforce the obligation
کلیدواژهها [English]
