A Comparative Study of Obliging the Performance of Obligation as a Remedy in Imamiyah Jurisprudence, Iranian Law and the Relevant International Instruments

• Published in: پژوهش تطبیقی حقوق اسلام و غرب Vol. 7; no. 4; pp. 209 - 240
• Main Authors: mohammad mahdi masoumi, mohammad salehimazandarani
• Format: Journal Article
• Language: Persian
• Published: University of Qom 01.12.2020
• Subjects: international instruments; law of iran; obliging the performance of the obligation; remedies
• ISSN: 2476-4213; 2476-4221
• DOI: 10.22091/csiw.2020.3185.1375

Obliging the obligor to perform the contractual obligations is one of the remedies or guarantees for breaching the contract. This remedy is foreseen in Imamiyah jurisprudence, Iranian law, and the relevant international instruments, but there are certain differences in domestic law and international instruments in this area.  Contrary to Iranian law in which the remedies are not equal with each other and the obligee is not free in choosing them, and he/she must initially demand obliging the performance of the obligation, in these international instruments, the right to obliging the performanceof the obligation and resorting to other means are along each other. That is, the obligee is free to choose the type of the remedy. Furthermore, in the aforementioned instruments, opposed to domestic law, the seizure of property of the debtor or obligor and his/her imprisonment for payment of debts or performance of contractual obligations is not foreseen. According to the dominant opinion in Imamiyah jurisprudence, assuming the possibility of obliging and compelling the obligor to perform the obligation, the obligee has no right to abolish the contract. However, some of the Islamic jurists have considered the possibility to obliging the performance and abolition as equal.