Journal of Comparative Law

Journal of Comparative Law

Remedy for Construction Contractor's Failure to Comply with the Specifications of the Contract in Common Law and Iranian Law

Document Type : Research Article

Author
Esmail Nemat Allahi
Associate Professor, Faculty of Law, University of Qom, Qom, Iran.
10.22096/law.2023.2003787.2142
Abstract
In some cases, construction contracts are faced with contractor’s breach. Breach of the contract by the contractor has various forms, such as non-fulfillment of the obligation to construct or delay in its performance, as well as incomplete fulfillment of the obligation and non-completion of the building. But another form that is common in practice is to failure to comply with the characteristics and specifications of the contract. In the common law system, the remedy for this breach is initially damages, and different methods are used to evaluate it, such as paying the cost of cure or difference in value. In Iranian law, the remedy for breach of contract is specific performance, which has its own branches such as repair and replacement. The question is that, if specific performance requires the waste of resources, is it possible to avoid the specific performance and award damages instead? Using the analytical and inductive method, this research first examines the methods of assessing damages for non-conforming performance by the contractor in common law and then the remedy for this breach in Iranian law and tries to strengthen the possibility of paying damages instead of specific performance in some cases and to provide a standard for compensation.
Keywords
construction contract
employer
contractor
breach of contract
assessment of damages

Subjects

Bibliografy
220th chamber of Tehran civil court, File no. 9309972164500723, March 11, 2015. [In Persian]
29th chamber  of Ruling of the General Meeting of the Administrative Justice Tribunal, File no. 1728, September 03, 2013. [In Persian]
33th chamber of Ruling of the General Meeting of the Administrative Justice Tribunal, File no. 4670, December 20, 2014. [In Persian]
3rd appellate chamber of Ruling of the General Meeting of the Administrative Justice Tribunal, File no. 9209970955300354, March 15, 2014. [In Persian]
3rd appellate chamber of Ruling of the General Meeting of the Administrative Justice Tribunal, File no. 9309970955300797, November 02, 2014. [In Persian]
3rd appellate chamber of Ruling of the General Meeting of the Administrative Justice Tribunal, File no. 9309970955301315, January 28, 2015. [In Persian]
46th appellate chamber of Tehran civil court, File no. 9409970224600327, June 17, 2015. [In Persian]
8th appellate chamber of Ruling of the General Meeting of the Administrative Justice Tribunal, File no. 9409970955801764, November 15, 2015. [In Persian]
Ansari, Sheikh Mortaza. Kitab al-Makasab. 1st edition, Volume 6, Qom: Congre Jahani Bozorgdashte Sheikh Azam Ansari, 1994. [In Arabic]                                                                         
Civil Code (Islamic Republic of Iran). [In Persian]
Civil Procedure Code) Islamic Republic of Iran). [In Persian]
Corbello v. Iowa Production (850 So. 2d 686, La. 2003).
Corrin Care, Jennifer. Contract Law in the South Pacific. 1st edition, London: Cavendish Publishing Limited, 2001.
Cyril, Chern. The Law of Construction Disputes. 3rd edition, [N.P]: Informa Law from Routledge, 2020.
Diotte v. Consolidated Dev. Co., 2014 CarswellNB 410 (Can. N.B.C.A.) (WL)
G.W. Atkins (Ilkeston) Limited v. Kenneth N. Scott [1980] 7 Const LJ 215.
Ghahrani, Nusratullah, and Shahrazad Shamsa. Daavi-ye Nashi az Sharaaet-e Omoomi-ye Peyman. 1st edition, Tehran: Khorsandi, 2013. [In Persian]
Google. “Difference in Value Rule.” Last modified December 02, 2023. https://www.quimbee.com/keyterms/difference-in-value-rule/.
Hinze, Jimmie. Construction Contracts. 3rd edition, New York: McGraw-Hill, 2011.
Hinze, Jimmie. Contruction Contracts. Translated by Mohammad Taqi Banki. 3rd edition, Tehran: Ettelaat, 2015. [In Persian]
Hurr Ameli, Muhammad bin Hassan. Wasa’il al-Shi’a, s. 1st edition, Volumes 19 and 25, Qom: Aal al-Bayt(PBUH), 1988. [In Arabic]
Ismaili Harisi, Ibrahim. Mabaani-ye Hoqooq-e Peyman. 4th edition, Tehran: Javadane Jangal, 2008. [In Persian]
Jabri, Mohammad Saleh. Hoqooq-e Sahkt va Saz. 1st edition, Tehran: Majd, 2016. [In Persian]
Jacob and Youngs, Inc. v. Kent (129 N.E. 889 (N.Y. 1921).
Katouzian, Nasser. Dowreh-ye Oqood-e Moayyan. 10th edition, Volume 1, Tehran: Sherkate Sahami Enteshar, 2008. [In Persian]
Katouzian, Nasser. Qavaaed-e Omoomi-ye Qaraardad-ha. 3rd edition, Volume 4, Tehran: Sherkate Sahami Enteshar, 2008. [In Persian]
Livingstone v. Rawyards Coal Co (1879–80) LR App Cas 25.
Mohaghegh Damad, Seyyed Mustafa. Qavaaed-e Feqh. 12th edition, Volume 1, Tehran: Islamic Sciences Publishing Center, 1985. [In Persian]
Nematollahi, Esmail. “A Study on Expectation Damages for Breach of Contract in Common Law and Iranian Law.” Comparative Studies on Islamic and Western Law 3, no. 9 (2016): 129-156.
New Era Group (China) Ltd v Studio M Interiors HK Ltd ([2021] HKCFI 3711, HCA 2963/2018 10 December 2021).
Peevyhouse v. Garland Coal and Mining Co.
Perillo, Joseph M.. Corbin on Contracts. Volume 11, New Jersey: Matthew Bender & Company, Inc. 2017.
Qanuni  Ejraye Ahkame Islami [Law on the enforcement of civil judgments] (Islamic Republic of Iran(. [In Persian]
Qanuni Shahrdari [Municipal Act]. [In Persian]
Rotterdam, Markus. “The Proper Measure of Damages for Contractor’s Breach of Contract.” Construction Law Letter 31, no. 3 ([N.D]): 10‑12.
Ruxley Electronics and Construction Ltd v. Forsyth [1996] AC 344.
Samadi Ghoshchi, Zaidullah. Takhallofaat-e Saakhtemaani dar Nezaam-e Hoqooqi-ye Iran. 2nd edition, Tehran: Jangal, 2013. [In Persian]
Samane Meli Arai Qazai. Last modified    October   3, 2023. https://ara.jri.ac.ir [In Persian]
Sergeant, Michael, and Max Wieliczko. Construction Contract Variations. 1st edition, [N.P]: Informa Law from Routledge, 2014.
Shahidi, Mahdi. Athaar-e Qararaadhaa va Taahhodaat. 2nd edition, Tehran: Majd, 2004. [In Persian]
Ter Haar, Roger. Remedies in Construction Law. 2nd edition, Routledge: Informa Law from, 2017.
Treitel, Guenter. The Law of Contract. 11th edition, London: Sweet & Maxwell, 2003.
Waterdance Ltd v. Kingston Marine Services Ltd [2014] EWHC 224 (TCC).
Wirtz, Richard S. “Cost of Performance or Difference in Value.” 59 Case W. Rsrv. L. Rev. 61 (2008): 61‑85. https://scholarlycommons.law.case.edu/caselrev/vol59/iss1/4
 
Send comment about this article
Enter Name.
Enter a valid email address.
Enter a vaid affiliation.
Enter comments (At leaset 10 words)
CAPTCHA Image
Enter Security Code Correctly.
Journal of Comparative Law
Volume 10, Issue 2 - Serial Number 20
Fall 2023 & Winter 2024-Issue 20
December 2023
Pages 223-245