AN INVESTIGATION INTO THE SPECIFIC PERFORMANCE REMEDY FOR BREACH OF CONTRACTS: A COMPARATIVE STUDY OF THE ISLAMIC IRANIAN LEGAL SYSTEM AND COMMON LAW
Keywords:
contractual damages, contractual damage compensation, remedies for contractual damages, primary remedies for contractual damages, specific performanceAbstract
Specific performance is among the legal remedies for damages caused by contractual infringement. This remedy is sometimes adopted as a “primary” remedy by different legal systems (e.g., the Iranian legal system) and sometimes as the “secondary” and “exceptional” remedy (e.g., the common law. In this respect, considering the remedy as the primary or secondary way to protect the benefits of the aggrieved parties from the breach of contract affects the coverage of the different range of damages caused to them. Therefore, one may ask why the common law uses this method as a secondary and exceptional remedy while the Iranian legal system uses it as the primary remedy for contractual damages. Accordingly, the present paper aimed to answer this question and determine a better approach for adopting this remedy using the analytical method. Overall, it was concluded that the main reason for considering this remedy as secondary and exceptional in the common law is the “loss mitigation” principle. Besides, the main reason why it is considered the primary remedy in Imami jurisprudence and the Iranian legal system is the “requirement” rule. As this remedy is considered secondary in the common law, this legal system is completely incapable of covering all contractual benefits of the aggrieved party. Therefore, the approach adopted by the Iranian legal system for the breach of contracts is better than the one adopted by the common law.
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