نوع مقاله : علمی- پژوهشی
عنوان مقاله English
نویسندگان English
In cases where one of the parties to a contract breaches its obligations without a legal authorization basis, the possibility of contract avoidance as a remedy has been provided for in some legal systems and in international instruments. Now the question is, what are the conditions for utilizing this remedy and what should the desirable situation be? This inquiry, recruiting a descriptive-analytical and comparative framework, seeks the answer in the 1980 Vienna Convention, Iranian law, and Iraqi law. The examinations revealed that in Iraqi law, avoidance due to breach of contractual obligations is specific to bilateral contracts (synallagmatic contracts) and requires the obligee's readiness to perform its own obligations and the provision of a notice demanding performance from the obligee; this is while the Convention pertains to international sales contracts and the mentioned notice is not necessary except in some cases. In Iranian law, avoidance is not specific to bilateral contracts and principally, the prerequisite for the right to avoid is a prior demand from the court for compelling the obligor to perform the obligation. In the Convention, a fundamental breach of contract is the main criterion for avoidance, but this is not the case in Iraqi and Iranian law, although in Iraqi law, a minor breach does not lead to avoidance. The destruction of both counter-performances in the contract in Iranian law principally does not prevent avoidance, but in Iraqi law, the ability of the party requesting avoidance to restore the status quo ante and in the Convention, the ability of the buyer to make restitution of the goods is principally a condition for avoidance. In this inquiry, it is suggested, among other things, that avoidance not be accepted in cases where the breach of contract is not serious according to customary practice, and that the Iranian legislator, for harmony with economic and judicial exigencies, replace the necessity of demanding compulsory performance from the court with a notice demanding performance of the obligation.
کلیدواژهها English
