نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق خصوص دانشگاه شهید بهشتی تهران
2 دانشگاه شهید بهشتی
3 استاد یار دانشکده حقوق دانشگاه شهید بهشتی
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The undeniable advantages of liquidated damages, including the absence of the need to prove the occurrence of harm and the causal relationship between the harmful Act and the incurred loss, encourage parties to include such a condition. Article 230 of the Civil Code suggests that in Iranian law, even if the liquidated damages are excessive, they are deemed necessary. The provision states: "If it is stipulated in a transaction that the defaulting party must pay a certain amount as compensation, the judge cannot impose a penalty greater or lesser than what is required." In English law, excessive liquidated damages are interpreted as penal conditions. Unlike a fixed damages clause, such conditions are not enforceable. Economic analysts believed that penal conditions hinder the achievement and breach of an efficient contract; however, nowadays, penal conditions are recognized not only as facilitators of contract breach but also as facilitators of efficient contract breach. According to this view, the mentioned condition should only be considered invalid in cases where it does not fulfill a particular economic role and is unfair. This research aims to provide an appropriate solution and examine the validity of excessive liquidated damages through a comparative approach by revisiting Article 230 of the Civil Code, specifically in cases where it does not fulfill a particular economic role and is deemed unfair
کلیدواژهها [English]
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