Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

The Function of Comparative Law in Private Law through a Case Study of Liquidated damages

Document Type : scientific research paper

Authors
laya joneydi 1
sepideh razi 2
1 Associate Professor, Department of Private Law, Faculty of Law and Political Science, University of Tehran; Tehran; Iran
2 PhD in private law , Faculty of Law and Political Science, University of Tehran, Tehran, Iran
10.22034/law.2024.2028057.1332
Abstract
Comparative law, as a method for the development and reform of national law, plays an important role in the dynamics of legal science, especially in private law. It enables legal scholars from different nations to draw on the experiences of other countries, offering proposals for the reform of legal concepts. On one hand, comparative study in private law facilitates the understanding of domestic law by revealing the different interpretations and solutions that exist in other countries through comparison and juxtaposition. On the other hand, by clarifying the strengths and weaknesses of domestic law, it allows for the utilization of achievements from the countries under study to address and improve deficiencies through legislative and judicial action. Furthermore, it provides a valuable opportunity to present the strengths of domestic law to international and foreign regulatory bodies.
This research, conducted using a descriptive-analytical method and utilizing library resources, first examines the role of comparative law in private law across both civil law and commercial law branches. It then deepens the study with a case analysis of the obligation to pay, which is increasingly utilized in civil and commercial contracts and serves as a common example to elucidate the practical function of comparative law in both branches. It aims to demonstrate how comparative study and the juxtaposition of legal institutions can significantly contribute to the nurturing and engineering of legal institutions, especially concerning the institution of obligations and its reform within the context of private law, and to serve as a source for presenting innovative solutions. To clarify the practical role of comparative law in private law, which is the most suitable branch for comparative study, a case study of the obligation to pay in the legal systems of England, France, and Iran reveals the necessity for reforming the deficiencies in the regulations regarding obligations within domestic law. The experiences of the countries examined indicate that, firstly, to prevent potential abuse by contracting parties, especially in cases of imbalanced power where contracts are imposed, there should be a possibility to limit the principle of autonomy of will and contractual freedom, as well as to adjust the obligation to pay in order to establish equitable exchange and economic public order. Secondly, the framework for this intervention must be clearly defined to apply only to unconscionable, oppressive, or unreasonable terms, as failing to establish such a framework can disrupt contractual relations between the parties. Therefore, through comparative study, it is essential to legislate for the possibility of controlling the freedom of will of the parties and adjusting the obligation to pay as an exceptional measure, with a clearly defined framework and criteria for its application.
 
Keywords
Keywords: comparative study
equating method
private law
civil law
commercial law
liquidated damages
penalty clause

Subjects

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