جستجوی مقالات مرتبط با کلیدواژه « حداکثر تلاش » در نشریات گروه « فقه و حقوق »

The best effort (conventional maximum effort) clause is the result of innovation in international commercial contracts, which is of particular importance in order to influence the interpretation of the contractual provisions and achieve the desired result. This clause is seen to be more effective among other similar clauses such as the reasonable care clause, and due diligence, because the obligor must use all his ability and expertise to fulfill the obligation. The best effort clause has different meanings in common law and civil law systems. The best effort clause in the civil law obliges the obligor to do everything in his power to fulfill his obligations, even if spending unlimited amounts of resources will cause him loss or bankruptcy, but in countries subject to common law, this clause has It is more flexible and means a conventional and appropriate effort, and therefore the obligor is not obliged to cut himself off from existence to fulfill the obligation. There is no mention of such a clause in Iranian law, but according to written laws and in the form of the traditional concept of commitment to means and results, accepting such a clause can be justified.

According to the principle of Freedom of contract the parties to the contract can include their preferred condition in the contract. In this way the condition of the best effort to fulfill the obligations is one of the conditions that can be mentioned in the contract, according to which, the obligor will do his best to fulfill the obligation. Such a condition causes the obligor not to think only of relieving himself. Despite the frequent use of such a condition in US contracts, there is no consensus on its validity. In this legal system, Some lawyers do not accept the mentioned condition due to its generality and ambiguity and consider it invalid, and on the other hand, they consider it correct. Recently, in international documents such as Unidroit Principles of International Commercial Contracts and Principle of European Law Service Contract  the condition of the best effort has been recognized and declared valid. In Iranian law, this condition is explicitly accepted in some laws, such as insurance laws and medical law. This article, using a descriptive-analytical method, after explaining the concept of the best effort condition, examines the position of this condition in the legal systems of Iran and the United States, as well as some international legal documents.