Analyzing the Effectiveness of Suspension of Contract Execution in the Legal Systems of Iran and England with an Approach to Economic Law
Subject Areas : حقوق مدنیMilad Rahmani 1 , Behnam Qanbarpour 2 , Sayyed Ali Jabbar Golbaghi Masouleh 3
1 - PhD student in Private Law, Faculty of Humanities, Ghaemshahr Branch, Islamic Azad University, Ghaemshahr, Iran.
2 - Associate Professor, Department of Jurisprudence and Law, Faculty of Humanities, Ghaemshahr Branch, Islamic Azad University, Ghaemshahr, Iran.
3 -
Keywords: suspension of contract execution, temporary cessation of obligation execution, sterilization of contract execution, effectiveness of suspension of contract execution, analysis of economic rights of contracts.,
Abstract :
Suspension of contract performance is not interpreted as termination or dissolution of the contract, but as a temporary cessation of the performance of the obligations of the parties or one of the parties for justified and exceptional reasons, such as: force majeure, legal excuse or change of fundamental circumstances.This institution has a special place in both the Iranian and English legal systems; but its nature, conditions of realization, effects and economic consequences have fundamental differences in each system, which are essential to recognize, especially in the context of economic law analysis. The present study is organized using an analytical and descriptive method with the aim of economically analyzing the effectiveness of suspension of contract performance in the Iranian and English legal systems. The findings of the study indicate the fact that in the Iranian legal system, although suspension of the performance of an obligation is justifiable in the form of Article: 227 of the Civil Code and jurisprudential theories such as: legitimate excuse and temporary impossibility, there are no explicit and systematic rules for it. From the perspective of economic law analysis, the effectiveness of the institution of suspension of contract performance depends on its ability to reduce transaction costs, prevent irreparable damage, maintain the parties' motivation to perform the contract in the future, and optimally distribute risk. In the English legal system, the precise prediction of force majeure clauses and the possibility of rational and purposeful interpretation by the courts increase legal predictability and reduce the costs of uncertainty. Also, in this system, the courts, taking into account the economic benefit of the contract, instead of insisting solely on formal rules, suspend the performance of the contract until the obstacle is removed, which leads to the maintenance of long-term economic relations and the avoidance of harmful dissolutions.
1. Alavi Qazvini, S. A., & Vakili Moghaddam, M. H. (2010). Revisiting contract provisions. Islamic Jurisprudence and Law Quarterly, 1(1), 145–154. [In Persian]
2.Andarz, D. (2023). The right of retention in transactions from the perspective of jurisprudence and Iranian law. Economic Studies Quarterly, 5(3), 123–141. [In Persian]
3. Badini, H., & Samadi, A. (2017). Suspension of contracts: A general rule or a labor law-specific rule? A comparative study in French and English law. Comparative Legal Research Quarterly, 21(2), 29–57. [In Persian]
4. Badini, H., & Forouzan Boroujeni, F. (2018). Analytical view on the possibility of contract termination despite the feasibility of specific performance in Iranian and German law. Shiraz University Legal Studies Journal, 10(1), 35–61. [In Persian]
5. Bagheri, A., & Tabatabaei, S. M. S. (2015). The right of retention. Islamic Studies Quarterly, 67, 81–104. [In Persian]
6. Banaei Eskooi, M. (2013). Contract adjustment in case of financial hardship. Comparative Legal Studies Journal, 4(1), 40–57. [In Persian]
7. Brunner, C. (2009). Force Majeure and Hardship Under General Contract Principles: Exemption for Non-performance in International Arbitration. Kluwer Law International B.V.
8.Emami, S. H. (1987). Civil Law. Tehran: Islamieh Bookstore. [In Persian]
9. Ebadi, T., et al. (2022). Comparative study of the right of retention in jurisprudence, Iranian law, and Canadian law. Interdisciplinary Jurisprudence Studies Quarterly, 9, 34–50. [In Persian]
10.Fattah Zadeh, Z. (2012). Hardship resulting from the exercise of the right of retention. Family Jurisprudence and Law Quarterly, 17(57), 23–41. [In Persian]
11. Fotouhi Rad, R., et al. (2021). The right of retention in the performance of reciprocal obligations. Private Law Studies Quarterly, 51(4), 776–790. [In Persian]
12.Farahati, M., et al. (2018). Jurisprudential and legal review of remedies for breach of contractual obligations in light of ethical teachings. Bioethics Journal, 8(1), 208–225. [In Persian]
13.Ghaane, A. A., & Mousavi Mosah al-Shari'ah, A. R. (2022). Non-applicability of the right of retention in marriage. Women's and Family Jurisprudence and Legal Studies Quarterly, 5(9), 80–98. [In Persian]
14.Nasiri, M., et al. (2005). Comparative study of the right of suspension and right of retention in domestic law and FIDIC standard contracts. Modarres Humanities Journal , Special Issue on Law, 138–154. [In Persian]
15.McKendrick, E. (2013). Force Majeure and Frustration of Contract. CRC Press.
16.Parsapour, M. B., & Zakerinia, H. (2015). Types, rules, and effects of excuses for non-performance of contracts: A comparative study in Iranian, Roman-Germanic, Common Law systems and international instruments. Comparative Legal Research Quarterly, 19(2), 25–50. [In Persian]
17.Parsapour, M. B., & Isaee Tafreshi, M. (2009). General theory of the right of retention in reciprocal obligations. Legal Letter Quarterly, 5(2), 18–49. [In Persian]
18.Rastad, M. (2017). Adjustment due to contract performance in construction contracts. 1st Conference on Modern Scientific Research in Management, Accounting, Law, and Social Sciences, Shiraz University, 1–18. [In Persian]
19.Rostami, M. Z., & Rostami, M. H. (2019). The process and theoretical foundations of economic analysis of law and its impact on economic growth. Economic Law Knowledge Semiannual, 26(16), Autumn & Winter. [In Persian]
20.Soltani Nejad, H. (2017). Specific performance of contractual obligations and its barriers in jurisprudence and various legal systems. Comparative Studies of Islamic and Western Law Quarterly, 4(2), 112–132. [In Persian]
21.Shahbazi, M., et al. (2019). Re-reading the right of retention: Evaluating its efficiency based on its operational scope. Civil Jurisprudence Teachings Quarterly, Razavi Islamic Sciences University, 19, 275–309. [In Persian]
22.Shahedi Ali Abad, H. (2020). Jurisprudential and legal review of the wife's right of retention in case of husband's hardship. Islamic Studies: Jurisprudence and Principles Quarterly, 45(95), 30–47. [In Persian]
23.Shabanpour Almoshiri, E., et al. (2021). Jurisprudential-legal nature of the right of retention in contracts with reference to international instruments. Jurisprudence Research Quarterly, 28(4), 146–160. [In Persian]
24.Safa, M. A. (2009). The right of retention. Specialized Jurisprudence and Civilization History Quarterly, 5(20), 54–70. [In Persian]
