Volume 20, Issue 70 (9-2015)                   __Judicial Law Views __2012__, 20(__59__): __224101 | Back to browse issues page

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safaii S H, asgari J. The Nature and Bases of the Doctrine of Anticipatory Breach in Figh & Iranian Law. دیدگاه‌های حقوقی. 2015; 20 (70) :83-101
URL: http://jlviews.ujsas.ac.ir/article-1-446-en.html
1- , asgarilaw@gmail.com
Abstract:   (4287 Views)

In the law of contract, one of the effects of contract breach by one party is right of another party in resorting to sanctions (remedies) resulting from the contract breach. But when this right is applicable that, on principle, the due date for performance of contract has been arrived and the promisor dose not performed his contractual obligations. But, occasionally, prior to the due date for performance of obligation, the promisee reasonably conclude that the promisor, for any reason, cannot or will not perform his obligation in due date. In this case ,the doctrine of Anticipatory Breach of Contract propound as a new legal establishment and it permits to the promisee, by Resorting to sanctions (remedies) of this doctrine, to gets rid of his obligations in the contract which will encounters with breach in the future and proportionately enterprises to suspension or termination of contract. The fundamental question is whether such doctrine, which it’s origin is Common Law system, can endowed with any position in Figh & Iranian Law it means that, whether, in the Iranian legal system, prior to the due date for performance of obligation, the promise, by invoking to this doctrine, can be resorted to sanctions (remedies) resulting from breach of contract. It appears that it is not always necessary to promisee wait for the due date for performance of commitment, but the  promisee could terminate the contract with recourse to the provisions of Anticipatory Breach even before the contract due date, in according to the incontrovertible legal and jurisprudential principles such as "No Loss", "wisdom base" and "themed implied term" Rules. Here, we explaining and analyzing the nature of this theory, try to prove that this theory is justified in Iranian law, and also in Islamic jurisprudence (figh).

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Type of Study: Research | Subject: Pivate Law
Received: 2014/10/02 | Revised: 2019/01/06 | Accepted: 2016/12/18 | Published: 2017/01/08 | ePublished: 2017/01/08

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