Legal Research Quarterly

Legal Research Quarterly

Abuse of Contractual Rights In Contract Performance Phase

Document Type : Original Article

Authors
abbas karimi 1
ramin sharifi mahalleh 2
zeinolabedin taghavi 3
1 Professor, Department of Private and Islamic Law, University of Tehran, Tehran, Iran
2 PhD Candidate, Faculty of Humanities, Islamic Azad University: Sari Branch, Sari, Iran.
3 PhD. Faculty of Law & Political Sciences, University of Tehran, Tehran, Iran.
10.52547/jlr.2022.220984.1863
Abstract
The enforcement of the rights arising from the contract must be done in a normal form. Deviation from the normal form of applying the contractual right is considered as a fault and leads to the abuse of the contractual right. Despite the effort to prevent the abuse of contractual right and provide legal solutions and measures to guarantee strong sanctions, the recurrence of the abuse of the contractual right is inevitable, because it depends on the attitude of the beneficiary. If he wants to abuse the right created by the concluded contract and exceeds the scope of the right, the abuse of the contractual right will undoubtedly occur with no escape. Contracts such as "Contracts with Imposition Conditions", "Contracts with Liquidated Damages", and "Contracts Affected by Changing Conditions","Contracts of Adhesion" and "Consumer Contracts" are potentially abusive in private law. The existence of sanctions such as "Contract Adjustment", "Contract Termination", "Compensation" and "Contract Annulment" in the contract and laws is a principal factor in preventing the abuse of contractual rights during the contract performance phase. This study indicates four criteria to abuse contractual rights which some of them are accepted by most of the countries including: 1- the intention to harm, 2- the criterion of goodwill in contract performance, 3- the criterion of violating the social purposes of rights, 4- the criterion of fault in contract performance.  
Keywords
contract law
abuse of right
contracts prone to abuse
performance guarantee
Subjects

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  • Receive Date 05 March 2021
  • Revise Date 25 November 2022
  • Accept Date 11 December 2022