Abstract:
The basis of every contract in civil law is the mutual consent and agreement of two wills, which is considered the foundation of the validity of the contract and the law between the contracting parties. Establishing contractual freedom requires that a violation of the terms of the contract results in civil liability for the obligor, and that the breaker of the promise becomes obligated to compensate for damages resulting from the non-performance of the obligation. Compensation for damages may be provided legally (such as damages for delay in payment of cash according to Article 522 of the Civil Procedure Law), judicially (according to Articles 1 and 2 of the Civil Liability Law), or contractually as a fixed amount (based on Article 230 of the Civil Law). In ordinary real estate contracts or promissory notes, there are usually two parts: the first part includes the main elements of a future sale, and the second part includes implicit conditions of the contract. Among these conditions, liquidated damages (Wajh al-Iltizam) is presented as one of the important guarantees for the execution of the contract, which, according to the rules of necessity and fulfillment of contracts, is valid and legitimate and does not cause ignorance or uncertainty (Gharar) in the transaction. With the approval of the Law on the Obligation to Officially Register Transactions of Immovable Property (2022/12/07), the importance of promissory note conditions, including liquidated damages, has increased; because from now on, transactions of immovable property are only valid in official notary offices, and ordinary documents lack ownership effects. Accordingly, the liquidated damages clause in promissory notes plays the role of guaranteeing and compensating for damages caused by deviating from the obligation to officially transfer the property, and in case of the obligor's refusal, the opposing party can, by citing it, claim the stipulated damages or actual excess damages through judicial authorities. Examining the relationships between liquidated damages and the primary obligation, its substantive characteristics, and the conditions for proving it, clarifies the position of ordinary documents in the registration system and the execution of obligations.
Machine summary:
From an induction of the content, provisions, and implications of jurists' expressions, the following definition for liquidated damages can be provided: "Liquidated damages is an aspect arising from the agreement of the contracting parties, either as an implicit condition (shart dimn al-aqd) or independently, which is stipulated for the purpose of adhering to the terms and contents of the contract and with the aim of preventing the occurrence of damage, facilitating the proof of damage, or guaranteeing the execution of the contract between the parties, so that in the event of unjustified non-performance of a future obligation through delay or improper performance, the violator shall pay the amount stipulated in the condition to the obligee.
With the approval of Article 39 of the Mandatory Regulations for the Execution of Official Documents passed in 1976 (1355), the opinion of the Supreme Court in the aforementioned ruling effectively lost its legal basis, because the legislator explicitly stipulated that "if liquidated damages have been set for the non-performance of an obligation, the obligee can only claim one of the two.
" In a case related to a preliminary agreement dated 1990/03/17 regarding the transfer of six shares of a house, the court of first instance, citing Article 230 of the Civil Code and the 1973 insistent ruling of the Supreme Court, regarded the liquidated damages as an enforcement guarantee for the primary obligation and ordered the seller to execute the official deed and pay damages.
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