Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

A comparative study of civil fines (non-criminal penalties) as a guarantee for the implementation of obligations to a person in the Roman-Germanic and Common Law systems

Articles in Press

Document Type : scientific research paper

Authors
Fariba AzadehRanjbar 1
Hani Hajian 2
Fatemeh Omidi 3
1 Researcher at the Iranian Law and Legal Research Institute. Master of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran. Lecturer, Islamic Azad University, Hashtgerd County, Alborz, Iran
2 Judge of the Judiciary, PhD Candidate in Private Law, Faculty of Humanities, Islamic Azad University (North Tehran Branch), Tehran, Iran.
3 Researcher at the Iranian Law and Legal Research Institute, Master’s degree in Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
10.22034/law.2025.2075029.1722
Abstract
In obligations, the principle is the specific performance of the obligation itself. From the perspective of whether the obligation can or cannot be performed by a third party, obligations are divided into two categories: personal obligations (intuitu personae) and non-personal obligations. A key characteristic of personal obligations is their reliance on the personality of the obligor. In personal obligations, if one of their essential elements—which may be the obligor or the subject matter of the obligation itself—is impaired, the fate of the obligation changes, and its rules differ from those governing non-personal obligations. Furthermore, when compelling the obligor to perform the obligation during the enforcement stage, the compulsion method differs from that used for non-personal obligations. In this type of obligation, performance by a third party is not possible; hence, if the obligor refuses to perform the obligation, claiming the cost for third-party execution is not an option. For this reason, and based on the principle of specific performance, the legislator stated in the note to Article 47 of the Law on Enforcement of Civil Judgments (1977): "If the performance of the act by another person is impossible, it shall be carried out in accordance with Article 729 of the Code of Civil Procedure." With the repeal of the 1939 Code of Civil Procedure and the adoption of the 2000 Code of Civil Procedure, the question of whether the ruling in the said note remains in force or is repealed has been raised in courts and constitutes the main question of this research. This study employs library resources and a descriptive-analytical method to investigate the main question. It aims, firstly, to examine the status of the aforementioned note considering the repeal of the former Code of Civil Procedure. Secondly, it seeks to clarify the enforcement mechanism for personal obligations, under the assumption that the note is either repealed or remains applicable. The findings of this research suggest that the repeal of Article 729 of the former Code of Civil Procedure is unacceptable, and the institution of civil fine (non-criminal chastisement/penalty) is a ruling that not only does not contradict Sharia law but also guarantees the execution of the contract based on the rule of "Afw Bil-Uqud" (Fulfill the contracts).
Keywords
Personal Obligation (Intuitu Personae)
Performance of Obligation
Article 729 of the former Code of Civil Procedure
Article 730 of the former Code of Civil Procedure
Article 47 of the Law on Enforcement of Civil Judgments
Non-Criminal Penalties
Civil Fine

Subjects

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Journal of Research and Development in Comparative Law

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Available Online from 10 November 2025