بررسي تطبيقي تعذر اجراي قرارداد (در فقه و حقوق ايران و حقوق انگليس)

A comparative Study of Impossibility of Performance in Iranian Jurisprudence and Law and English Law

Impossibility of performance on the one hand conforms to the jurisprudential rule of "invalidation of any contract for the impossibility of performing its contents" or "impossibility of performance invalidates the contract", and on the other hand, according to "the option of impossibility of submission", impossibility of the contract results in the option for the warrantee or for the person in whose favor a condition is made. The present article is seeking to resolve the seeming contradiction between the aforementioned rule and the option of impossibility of submission, demarcating the limits of each of them. In this study, firstly, a classification of impossibility is presented as follows: ʹtemporary/ perpetualʹ, ʹprimary/ accidentalʹ, ʹpartial/ totalʹ, and ʹimpossibility of the primary/ secondary contractʹ; then the point for exertion of option of impossibility or the rule of "invalidation of any contract for the impossibility of performing its contents" in each of the abovementioned types are studied and analyzed. After an investigation of impossibility of performance in Imami jurisprudence and in Iranian law, we have compared and contrasted these two legal systems with law of England as far as this point is concerned.