Analysis of General Theory of Indemnity in Contracts Based on Economic Attitude: A Comparative Study of Common Law

Document Type : Research Paper

Authors

1 Assistant Professor, Department of Law, Shahriar Higher Education Institute, Gilan, Iran

2 Professor, Faculty of Law, University of Tehran, Tehran, Iran

3 Associate Professor, Faculty of Law, College of Farabi, University of Tehran, Qom, Iran

Abstract

This article attempts to explain the reasons for the general theory of indemnity (arsh) in Imamiyyah jurisprudence and following that in Iranian law and to prove the reasons based on an economic analysis. In this case, the results obtained from the analysis will turn the general theory of indemnity into an efficient guarantee against violating party of the contractual commitments and proper and fair answer may be given to the breaching of the contract by Imamiyyah jurisprudence based on traditional - revised - systems. In addition to explaining the reasons for classical and modern theories of economic law with an emphasis on the question as to whether the execution of the same commitment is preferred or its indemnity, the article makes a comparative study of the subject matter in common law specifically American common law. The results obtained from of the research show that the general theory of indemnity can be completely proved based on the classical and modern economic theories. In fact, it can be said that the general theory of indemnity can be a combination of the Hick’s ethical theory of performance - mainly on the basis of Kaldor's performance theory - and the priority of compensating over performing of the same commitment and the theory of objectivity that aims to remove ethics in the area of contract. 

Keywords

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Religious Researches
Volume 17, Issue 2
July 2021
Pages 561-587

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History

  • Receive Date: 04 May 2019
  • Revise Date: 16 February 2020
  • Accept Date: 16 February 2020

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