چکیده:
The rule of law is effective in the production of wealth and social welfare, so that any rule of law that causes a waste of resources must be reviewed. One of the functions of legal economic analysis is to evaluate the effectiveness of legal rules and determine the most efficient ones. In other words, the economic analysis of law is the application of theories of economics, especially "efficiency" as the basis of legal rules in order to evaluate these rules and, if necessary, correct them. In line with this, law and economics use economic rules, especially microeconomics, and determine the guarantee of optimal implementation in terms of the theory of "price of breach of obligation". Economic analysis of law also seeks to achieve the most valuable legal rule, the value that is referred to in the economic literature as the theory of "social cost". In the present research process, which uses a descriptive-analytical method, it is concluded that the right of lien has not only failed to achieve its goals legally, but also economically, has caused a waste of resources, increased transaction costs and increased lawsuits. It goes so far as to sometimes lead to the termination of the contract or its goals.
خلاصه ماشینی:
In the present research process, which was conducted using a descriptive-analytical method, it was concluded that the right of retention has not only failed to achieve its goals from a legal point of view, but also economically causes waste of resources, increased transaction costs, and increased litigation, to the extent that it sometimes creates the basis for the destruction of the contract or its objectives.
In Article 83 of the Swiss Contracts Law, if the non-performance of one party is apparent to some extent, for example, their insolvency leads to bankruptcy so that they cannot fulfill their obligations or they are legally incapacitated from their property, and if the worsening of their economic situation would undoubtedly endanger the rights of the other party, they have the right to refrain from performing their obligation; however, until the reciprocal performance is secured.
After presenting the criteria of economic analysis, we will explain the right of retention as a legal guarantee for contractual obligations.
It should be noted, however, that in economic analysis of law, a theory called "efficient breach" is presented, according to which, if the costs of fulfilling the obligation are greater than its benefits for one or both parties, breach and termination of the contract should replace the execution of the contract.
What has been discussed so far addresses the right of retention as a legal guarantee of contractual obligations from the perspective of economic analysis of law.
“Economic Analysis of Guarantees for Breach of Contract (Compulsory Execution of the Subject Matter of the Obligation)”, Journal of Private Law Studies, Vol. 49, No. 1, pp.
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