بحثي پيرامون مفهوم نقض اساسي قرارداد در كنوانسيون بيع بين الملي كالا (1980 وين ) با مطالعه تطبيقي

A DISCUSSION ON THE CONCEPT OF FUNDAMENTAL BREACH ON THE INTERNATIONAL SALE OF GOODS CONVENTION (1980-VIENNA) WITH A COMPARATIVE STUDY

In any contract, particularly contract of sale, the sanctions as a consequence of breach is one of the most challenging issues during preliminary negotiations, development and signing contract and for this reason, the sanctions form one of the most important issues of contracts law in most legal systems. In this respect, termination which cause a full stop in the sanction and its dissolution, being considered as a relatively serious sanction as well, has an outstanding and special place. Since in the scope of international trade, particularly after handing over the goods and paying the price, termination has many undesirable consequences for the breaching and terminating pary as far as the insurance costs, delivery, warehouse and such expenses may concern and the other hand, improvement and promotion of trading requires the contracts to be executed as much as possible; thus it is natural that using this sanction should be limited to the realization of special means and conditions. Along this, essentially the Convention allows termination of the contract only when the obligee breaches the contract fundamentally. And the breach is considered as a fundamental one if it damages one of the important foundations of the contract and removes the main benefit as expected by the obligee. This legal establishment is accepted in the England and France legal systems with a slight difference; however in the Iranian law, termination of contract follows a series of specified and independent criteria and standards and according to the type of sales (ascertained goods and unascertained goods) and essentially, no attention is paid to the type of the breached obligation, the severity of breach and the effects thereof.