Evaluation of the moral foundations of obligation violating and Penalty Clause in Iranian law and its comparison with British law
Subject Areas : اخلاق و تربیت اسلامیReza Zohrevand 1 , Hamid Reza Ali Karami 2 , Vahid Ghasemi Ahd 3
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Keywords: moral obligation, consent, penal terms, Penalty Clause, Iranian law, English law.. ,
Abstract :
Obligations and the discussion of fulfillment or violation of it is a moral issue that is our daily moral life and an important part of law science. For this reason, it is necessary and important to pay attention to the conditions and rulings of transfer of obligation, the ethical standards governing it to know the laws and regulations in this field. This issue is done by the legal review of the obligation, which is a recognized institution. In the systems subordinate to the Roman Germanic system, the obligation is theoretically written, in Islamic law, when writing the civil law, article 230 was adapted from article 1152 of the French civil code, and despite the fact that the French civil law, in order to correct and improve this The institution has been amended many times, Article 230 of the Civil Code, which is the only article about the obligation, has not changed since then, and in this sense, its nature and moral effects are still in an aura of ambiguity. It should be noted. In Iranian law, judicial fines and punitive clauses have not been much studied by jurists; therefore, sometimes, out of tolerance, punitive clauses and punitive clauses have been used interchangeably. The transfer of obligation can be considered based on moral principles and good morality, the most important of which is the issue of compensation based on satisfaction. In this theory, the beneficiary's participation in the transfer of the obligation is accepted, and finally, the reciprocity of the transfer is taken into account in special cases. In English law, while drawing a decisive boundary between these two entities, the obligation, acceptance and penal clauses (penalty) have been declared invalid and only the right to demand actual damages has been considered for conditional clauses. Penal clauses in English law are meant as one Among the types of contractual fines are terms whose main purpose is to prevent the obligee from breaching the contract, not to determine damages and compensate them in advance, although it may also have the aspect of compensating damages, according to the studies conducted, English law allows penal terms. It does not know enforcement and the most obvious reason for this opposition is that people cannot punish each other, in other words, common law considers penal clauses to be invalid and penal clauses are valid only in case of breach of contract. Therefore, when the contract is terminated prematurely, the rules of criminal fines are not applied. What is very important is that about how to apply the judicial rules of criminal clauses of English law in Iranian law, it should be said: Currently, in Iranian law, fines judicially prohibited or at least very limited and judicial fines in Iranian law have a limited scope.