Comparative Law Researches

Comparative Law Researches

Comparison or Alignment of the Efficient Breach of Contract Theory and the Gain-Based Damages Theory in Common Law; with a View to the Status of two Theories in Iranian Law

Document Type : Original Research

Authors
Saeid Balipour Babadi 1
Firoz Ahmady 2
jamshid mirzaei 2
1 Ph.D. Student in Private Law, Faculty of Law, Azad University, Khoramabad, Iran
2 Assistant Professor in Private Law, Faculty of Law, Azad University, Khoramabad, Iran
10.48311/CLR.29.1.5
Abstract
In the modern law of contracts, special attention has been paid to the economic effects of contracts. One of these effects is the emergence of the theory of efficient breach, according to which, in cases where the execution of the contract is harmful, by creating a right of termination for the obligee, the breach of the contract has been protected. But on the other hand, a different approach to the breach of contract has been proposed under the title of gain-based damages, which not only does not support the breach of contract, but tries to deal with it by returning the benefits obtained in this way. Due to the apparent inconsistency, this suspicion has been created among some theorists that these two theories are in conflict with each other, one is seeking to support the breach of contract and the other is trying to deal with it. But these two theories are not only not in opposition, but also aligned. Because efficient infringement applies to “loss-Avoiding” infringements and benefit-based damages apply to “Gain-Seeking" infringements and in addition to the different functional areas, they also have a common goal because both seek to implement the contract in a correct economic path to provide the economic interests of the society.


Keywords
Contract
Efficient breach
gain-based damages
Loss-Avoiding
Gain-Seekin

Subjects

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