Ibrahim Rezaei
Social life is
accompanied with various obligations, obligations that have forced the social
necessities of the legislator to impose them on individuals or parties with
freedom of will have undertaken it. The adaptation and implementation of legal
and contractual obligations requires a performance guarantee. One of the
obligations created by international commercial law for the parties of the
contract is the alternative transaction in the assumption that one of the
parties violates its contractual obligations. In the case of breach of contract
from one side, the other party is committed to the mitigation of damage and one
of the best ways for the mitigation of damage is to make an alternative
transaction. In the absence of an alternative transaction and failure to the
mitigation of damage, the victim will be deprived from the claim for additional
damages that could prevent its entry and development. Convention on Contracts
for the International Sale of Goods, the Principles of European Contracts and
the Principles of International Commercial Contracts has explicitly determined
this obligation on the responsibility of victim. This rule has not been
explicitly raised in Islamic jurisprudence, including the Imamiyeh
jurisprudence, but lawyers have tried to prove alternative transaction through
rules such as the rule of prohibition of detriment, the rule of action, the
principle of good faith, and... mitigation of damage. In Afghan law, the
lawmaker in the law of trade contracts and the sale of property explicitly
obliged the promisee to the alternative transaction, and it can be deduced from
the provisions of civil law, but the Iranian legislator has explicitly failed
to assign this duty to promisee. However, lawyers have invoked some articles of
the law of commerce, civil law, Islamic punishment law, civil liability and
good faith principle to prove the principle of coping with damages and thus to
prove an alternative transaction. But the fact is that the proof of an
alternative transaction in Iranian law is difficult according to the necessity
and priority of the demand for the implementation of the object of obligation..