چکیده:
Gain-based damages, as a new and exceptional criterion for assessing damages, is placed against loss-based (or compensatory) damages. Rather than focusing on the losses suffered by the aggrieved party as a result of breach, this criterion places emphasis on the profits derived from breach by the breaching party. The most salient question in relation to this criterion is whether such a focus on the benefits derived from breach could constitute a valid basis for the assessment of damages in cases of breach of contract; and if so, whether such a criterion could be acceptable in the Iranian legal system. Emplying an analytical approach, this article attempts to answer these questions. Based on the findings of this research, it is submitted that first, bearing in mind the legal and economic aspects of the issue, accommodating such a criterion in a legal system is a must in any comprehensive regime for contractual liability to compensate for damages. Second, there does not seem to be a significant barrier for accepting this criterion in Iranian legal system, particularly given the fact that, based on Article 3 of the 1960 Law on Civil Liability, determining the amount of damages and the manner of compensation is at the judicial discretion of a judge.
خلاصه ماشینی:
The most important question raised in this regard is whether focusing on the benefits resulting from the breach for the breacher can be considered a rule for assessing damages or not, and if so, whether the acceptance of such a rule can be discussed within the Iranian legal system.
The findings of this research will lead to two important conclusions: first, that the acceptance of this new rule, given its legal and economic dimensions, seems necessary in a comprehensive contractual liability system; and second, that the acceptance of this rule in our legal system faces no obstacle, especially since, based on Article 3 of the Civil Liability Law enacted in 1960, the determination of the amount of damages and the method and quality of compensation has been left to the judges.
With these preliminaries, the most important economic objection of critics to the rule of damages based on unjust gain becomes clear: if this rule is accepted and applied, in fact, the theory of efficient breach will not be taken into account; because the profit resulting from the breach, instead of becoming the gain of the breaching party, will become the portion of the aggrieved obligee from the breach; consequently, the breaker will not breach the contract and will not seek greater profit.
b) Furthermore, critics believe that the acceptance and application of the rule of damages based on unjust gain will have a chilling and discouraging1 effect on economic activities; because if the defendant is required to restore everything they have obtained to the plaintiff, they will no longer have any incentive for economic activities and wealth maximization, and will become discouraged.
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