قلمرو مسيوليت مدني ناشي از تخلف از اجراي تعهد

The scope of Civil Liability Arising from Non-performnce

Our countryʹs law concerning the scope of evil liability arising from non-performance of obligations, has a history associated with ups and downs, so that it can be divided into three phases: the enactmant of Civil Code in 1307 of solar calendar, adoption of Civil Procedure in 1318 and Civil Liability Law in 1339 and the Law of Procedure of General and Revolutionary Courts in Civil Matters) in 1379.Understanding legal developments in relation to our subject matter is not possible without examining its background in foreign legal systems, on one hand, and studying Fiqhi foundations and common doctrine among Muslim jurists, on the other.The paper is an attempt to study the scope of civil liability arising from non-performance first in foreign legal systems and then from a jurisprudential viewpoint and finally, its developments in our countryʹs law, especially in recent years.The paper argues that sybjecting the demand of contractual reparation to express or implicit will of the parties (in Article 221 of Civil Code) by the civil legislator in 1307 is not pointless but rather was to adapt European law to Islamic Shiʹa jurisprudence and was therefore necessary.Also the exclusion of non-profit loss from the scope of civil liability arising from non-performance, its limitation to deliberate destruction and causing and the intervention of the element of "fault" in contractual liability considered in the law of procedure of General and Revolutionary Courts (in civil matters) of 1379 are contrary to todayʹs customary principles. The mechanism envisaged in the Civil Code of 1307 which is the sole way of adopting a large scope for that liability is consistent with generally accepted doctrine in jurisprudence and also with principle 4 of the Islamic Republic of Iranʹs Constitution.