Authors

• Mohsen Esmaeili ¹
• Mohammad Mahdi Heidari ²

¹ Associate Professor of the Faculty of Law and Political Science, University of Tehran, Tehran, Iran

² Masters in Islamic Education and Private Law, Imam Sadiq(A.S) University, Tehran, Iran

Abstract

In contractual obligations, if the obligor refuses to fulfill his obligations, the jurists have provided performance guarantees to him in order to protect the obligee's rights, so that by relying on them, he can achieve the desired of his contract. Compulsory execution of the same obligation and the right of termination are the two guarantees of non-fulfillment of obligations in the words of the jurists. When the obligor does not fulfill his contractual obligations, the obligor can oblige the obligor to fulfill his contractual obligations as an executive guarantee, which is almost accepted by most jurists. In this case, there is also a guarantee of termination of the contract, which can be exercised by the obligor in this situation, with conditions. In the following article, we will address the issue of whether the obligee can still use the guarantee of the right of termination, assuming that it is possible to force the obligor to perform the same obligation, or whether the exercise of the right of termination is not possible. If it is possible to apply either of these two performance guarantees, is the obligee free to choose its preferred performance guarantee or not? In other words, is the relationship between the obligation to execute the same contract and the right of termination a longitudinal one, or is the relationship between the two a cross-sectional relationship and therefore a commitment to choose what is best for them?
To answer this question, we will first examine the sayings of the jurists and then, by stating the documents and evidence, we will conclude that if the contractor does not fulfill the contractual obligations, the contractor in choosing one of the two guarantees of performance The former is a benefactor.

Keywords

• Main Obligations
• Sub-Obligations
• Breach
• Termination
• Performance Guarantee
• Terms of the Contract