Examining the Efficiency of Priority of the Specific Performance over Termination of Contract in Respect of Historical, Economic and Philosophical Analysis of Islamic Law

According to the widely-Known viewpoint of Imamiyya jurisprudents, the specific performance is prior to the termination of contract, and if the enforcement of the obligor to perform his obligation is not possible due to the necessity of expertise in doing so, the obligee can terminate the contract. Also Iran’s Civil Code has followed this doctrine in Art. 237-239 and 476. The present article, based on the historical, economic and philosophical analysis of Islamic Law, examines and proves that the enforced obligor to specific performance and its primacy to the termination of contract in Imamiyya jurisprudence does not have the necessary efficiency and there is no acceptable legal-jurisprudence justification and it is based on the economic and philosophical interest of jurisprudents, so that clear ruling of traditions. As the finding of the present article, it is proposed to the legislator in the discussion of breach of contractual obligation to anticipate a set of remedy that all of them can be applied across the board. In the event of a breach of obligation, the obligee can choose a remedy that prepares favorably his benefit. Thus the costs and expenses of such a breach haven’t been transferred to society and the consequences of this breach have been managed within the contract by the two parties.