CHAPTER TWO. BUYER'S RIGHT TO SPECIFIC PERFORMANCE

PART ONE: English Law
1. Introduction
2. Requirements for Resorting to the Remedy of Specific Performance

PART TWO. The Convention
1. Introduction
2. Specific Performance
3. Right to Demand Cure

PART THREE. Iranian and Shi'ah Law
1. Introduction
2. Specific Performance as a General Remedy?
3. Reasons Justifying the Court's Intervention

CHAPTER THREE. COMPARATIVE ASSESSMENT

CONCLUSION

BIBLIOGRAPHY

INTRODUCTION

For this purpose, it is suggested to compare these systems with English sale of goods law and an important universal convention on the contracts for the international sale of goods prepared by the United Nations in 1980 (that is, the Convention on Contracts for the International Sale of Goods (hereinafter, the Convention) in order to assess these systems, as they stand, and with that which is suggested in this study.[1]

Structure of the Essay. The current Iranian sale of goods law is based on Civil Code. However, historically, Iranian civil law is closely tied to that of Shi'ah law.[2] The case has become more important when Iranian Constitution has declared the Shi'ah law predominant. For this purpose, its principle 4 provides:

"All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria. This principle shall absolutely and generally govern all the principles of the constitution as well as all other laws and regulations, and this shall be at the discretion of the jurists (fuqaha), members of the Guardian Council".[3]

The Constitution has also extended the significance of Shi'ah law to the level of settling disputes by the courts when setting up:

"The judge is bound to endeavour to judge each case on the basis of the codified law. In the case of absence of any such law, he has to deliver his judgement on the basis of authoritative Islamic sources and authentic fatawa. ..." (italic added).[4]

Accordingly, Shi'ah law is of significance in the Iranian legal system and it will thus cover a large part of the Iranian and Islamic section of this essay. However, no one can comprehensively present Shi'ah law in its real picture without looking at the main sources of the law and the method of exploiting the rules relating to the issue in question. Nevertheless, there is obviously no room in this study for a complete exposition of the relevant sources except in a summary form. A general introduction to the sources on which the law relating to the issue in question is based, the method of exploiting the law governing the issue and the methodology employed to perform this study are allocated to the First Chapter.

The main body of this work, i.e., dealing with the rules relating to the buyer's right to specific performance under the four systems, is covered by the Second. In the case of English law, the study will focus on the law regulating the buyer's remedies in light of the Sale of Goods Act 1979 as interpreted and applied in relevant judicial precedents and general principles of contract law, as a primary source, and the commentaries of academic writers in the field of the sale of goods law, as a secondary tool. In performing the English part of the study much emphasis is placed on the well-established law applicable to the issues in question without getting into much detail, though reference is made to different approaches taken by English commentators in respect of a particular issue where there is no settled law.

Similarly, in respect of the Convention, primary emphasis is placed on the rules prescribed by the Convention with respect to the issues under consideration by way of interpretation of the text of the Convention. However, the history of legislation of any particular provision is not disregarded. Great efforts are made to interpret the text of the Convention in light of its legislative history to read the intention of the Convention drafters.

A somewhat more complex method is used in the Iranian and Islamic part of the work. As far as Iranian law is concerned, focus would be on the Iranian Civil Code. If no required provision exists, the method suggested by principle 167 of the Iranian Constitution is employed. Under this principle, "The judge is bound to endeavour to judge each case on the basis of the codified law. In the case of absence of any such law, he has to deliver his judgement on the basis of authoritative Islamic sources and authentic fatawa. ..." (italic added).[5]

To identify what is law under Shi'ah jurisprudence, great efforts are made. This is because that most jurisprudential arguments have been made with respect to very traditional as well as hypothetical cases or questions rather than concrete ones. Likewise, the jurists have not gathered and classified the law governing the remedies for breach of contract, but they are scattered rules discussed in different places. For this purpose, initially an attempt is made to answer the relevant questions in accordance with the existing law, that is, Shi'ah jurists' judgements. In the absence of express statements of law, it is attempted to answer the question by interpreting the judgements of the jurists in similar situations and analysing the original authorities upon which the jurists have based their judgements in those cases. When the legal vacuums could not be filled by the foregoing methods, the author has tried to suggest the appropriate law by way of interpretation of the well-accepted general principles.

A necessary part of a study of such a nature is first to compare the various solutions adopted in developed legal systems on the problems in question in a short form to highlight the gaps in undeveloped systems. For this purpose, Iranian-Shi'ah law is extensively compared with the two developed systems here under examination in order to assess how they work and finally to show how much similarities and dissimilarities exist between Iranian-Shi'ah law and the two other systems. The Third Chapter is allotted to this purpose.

Although such a study may be carried out by way of a mixed study raising a problem and analysing any particular solution prescribed in a relevant legal system, it seems that the best way for the present study is that the author first shows the attitude of the developed systems, case by case, and then examines the issue under the undeveloped system and at the end uses these materials as a basis for a comparative assessment. This would help the writer first to show the vacuums in an undeveloped system and then to consider how the existing gaps can be filled by interpretation of the existing law and giving new suggestions.

CHAPTER ONE. Sources of Law

1. INTRODUCTION

1.1 Concept and Terminology

Shi'ah law, as exists today, consists of mass of the qualified Shi'ah jurists' fatawa (pl. of fatwa, religious judgement) reflected in Shi'ah feqh (jurisprudence).[6] As a legal example, that is those rules to which the principle 167 of the Iranian Constitution refers:

"The judge is bound to endeavour to judge each case on the basis of the codified law. In the case of absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatawa. ..." (italic added).[7]

1.2 Historical Background

To understand Shi'ah law as a separate legal system, one has to bear in mind the history of emergence of Shi'ah school of thought as a separate Islamic school. Emergence of different Islamic schools of thought has a long and complex history. It originates in the question of succession to the Prophet of Islam, when he passed away in the Islamic Hijrah (lunar) year 11/AD 632.[8] Before his passing away, all Muslims were unanimous that the primary source of law was Quran and in the case of doubt the case must have been referred to the Prophet's view. However, after his death differences emerged between his followers. The majority took the view that the Prophet did not specifically designate his successor but left the issue of succession to Muslims themselves to elect their own religious leader. However, the minority Muslims argued that the Prophet in several occasions did explicitly and implicitly specify his successor who was Ali ibn Abitalib (the Fourth Caliph in view of the Majority) and his decisions should have been observed by the Muslim community as the Prophet' decisions. They also argued that the question of Imamah (divine leadership) of the Muslim community was not an issue to be left to Muslims themselves. God had to specify a particular person to lead and administer the Muslim community under the divine law. On these textual and logical bases, they believed that the leadership of Muslim community devolved, upon Ali's martyrdom in 40/661, successively on Ali's two sons Hassan and Hussain. Thereafter it continued on the hereditary line through Ali's second son, Hussain the Third Imam, in the Prophetic House until the Twelfth Imam, al- Mahdi became the last who is still alive and remained in "occultation" (ghaybah) or hiding and will appear one day as the saviour.[9]

Upon this difference, two schools of thought emerged between Muslims community. Upon the first which was followed by the majority, it was held that in any case where there was a statement from the Quran or the Prophet it must be followed, otherwise the case must have been referred to the secondary sources. From then the majority of Muslims have gradually tried to develop some reliable sources upon which the Islamic faith should have been based and subsequently their school of thought was formed. This particular form of thought is commonly called the "Sunni school of thought". However, the minority of Muslims disagreed with that view and gave to the words, actions and taqrir (approval) of Shi'ah Imams (they are usually called the "Household of the Prophet") the same religious validity all Muslims agreed to give to the words, actions and taqrir of the Prophet.[10] On this basis, a separate school of thought was formed with its own methodology. This is commonly called the "Shi'ah school of thought".[11]

Following the emergence of difference between Sunni and Shi'ah scholars in respect of the sources upon which any particular religious view must have been based it was inevitable that there had to emerge two separate schools of Sunni and Shi'ah feqh. Sunni scholars went their own way and gradually established their own methodology of inferring the law of Shari'ah. However, the Shi'ah community did not feel such necessity at the period of Imamah. In any new situation the case was referred to the living Imam and any answer given by him was considered as the law of Shari'ah.[12]

Although at the period of Imamah of Shi'ah Imams some essential features of the theory of Imamah developed and a notable legal heritage was left, they were mostly oral and not systematic. For this reason, after the Occultation of the Twelfth Imam (starting from 265/879, particularly, after the permanent Occultation commenced from 329/941) Shi'ah scholars felt the need to systematise their own feqh.[13] For this purpose, they began to establish their own methodology which is known as the e'lm al usoul (Discipline of Principles or Science of Roots).[14] Under e'lm al usoul, they have gradually developed a particular methodology by which a jurist would be able to infer the law of Shari'ah. Under this methodology, any jurist seeking the law of Shari'ah must base his judgement on at least one source whose authoritativity is established in e'lm al usoul.[15]

Bearing the aforesaid point in mind, to perform a study of the nature of the present one may seem somewhat hard at first glance unless a general picture of the sources upon which the rules of this legal system should be based is presented. Identification of these sources and close understanding of their position in inferring the law of Shari'ah seems very significant. It enables a researcher not to fall into mere imitation and adoption of a particular legal view without a satisfactory justification. This may not be the case with respect to the legal systems which possess a well-classified as well as a developed codified legal system. However, the case is significant in respect of Shi'ah law. Talking of this legal system is not so easy as it may appear. When speaking of this system one must make a distinction between the principles which constitute the basic foundations of it and what has gradually developed over centuries from the emergence of Islam by Shi'ah scholars as Shi'ah jurisprudence. This is an important as well as a difficult task for a person who is interested in studying Shi'ah law. There are certain well-accepted sources which constitute the basic framework for understanding this legal system. Whatever is said on the part of a Shi'ah jurist must be justified by at least one of those well-accepted sources, otherwise it has no Islamic value. Accordingly, a legal view will have an authoritative value for Shi'ah community if it accords with those original sources.

However, dealing in detail with all legal sources upon which Shi'ah law is built is not feasible within the study of this type. What is said below is only a general examination of the sources upon which any legal rule should be founded in order to show how far this system of law could answer modern questions within its methodology.

2. SOURCES OF LAW

Conventionally, it is said that Shi'ah law comprises the aggregate of divinely-ordained rules which are to be inferred by the qualified jurists.[16] The role of jurist in Shi'ah law is not to make the law. What he judges is a simple announcement of the law of Shari'ah he discovers from the recognised sources.[17] In any particular case he has to endeavour to base his judgement on one of the sources which are prescribed below. The process of inference of detailed rules from the recognised sources is called "ijtehad" (literally, "endeavour" or "self-exertion").[18] On this view, it is held that the primary source is the Muslim Holy Book "Quran". The second source, in practice the most important one, is the Sunnah. Two further sources are also recognised by Shi'ah jurists, that is, ijma' and a'ql. No further source is formally recognised. However, as will be shown below, certain supplementary sources have been, albeit in varying degrees, used by the jurists in justifying their judgements.

2.1 Formal Sources

Although the four aforementioned sources are formally recognised in Shi'ah law as the valid source for inferring the law of Shari'ah, they are not employed at the same degree. There is a strict hierarchical order between them and are divided into two categories: primary and secondary.

2.1.1 Primary Sources

Quran and Sunnah are held to constitute the primary sources for inferring the law of Shari'ah. Since the rules prescribed therein are written down, they are commonly described as nass (sing.; nusous, pl.), which can be translated as Script or Text, forming the 'written' authority.[19]

2.1.1.1 Quran

The Quran is the principal source of every form of Islamic thought. It is the Quran which gives religious validity and authenticity to every other religious source in Islam.[20] This source is often called "ketab" (the book). It consists of over 6,000 ayah (sing.; ayat, pl.; literally, verses) [21] divided into 114 sourah (literally, chapters). The individual verses were pronounced over twenty-three years of Muhammad's Prophethood as wahy (revelation) of God's commandments. Among more than 6,000 verses of the Quran only about 500 of its individual verses are said to be concerned with the legal issues.[22] However, they contain certain general principles from which a number of detailed rules can be derived. It is to be mentioned that since a mass of rewayat are available in respect of the Quranic rules, any jurist is required to take into account those part of rewayat which elaborated the contents of these Quranic verses when inferring the relevant religious precepts.[23]

2.1.1.2 Sunnah

The other source upon which a legal view can be based is Sunnah. In the terminology of Islamic jurists, the term "Sunnah" (sometimes it is called "sirah") means [24] words (qoul), action (fe'al) and taqrir (implicitly approval) [25] transmitted from the Prophet which can be translated into "tradition". This source was spelt out by means which is called "hadith", pl. "ahadith", "rewayah", pl. "rewayat", or "khabar", pl. "akhbar".[26]

To explain, at the time when the Prophet was living, his followers referred queries and disputes to him and he answered their questions, adjudicated their disputes and pronounced rulings. Sometimes he made an action with the intention of teaching his followers the law of Shari'ah or a particular action or behaviour was made and the Prophet did not object while he was realising that action or behaviour. His words, deeds and approvals were remembered by his followers and subsequently recorded in writing as the Prophet's Sunnah.[27]

To that extent Shi'ah and Sunni schools are common, although they depart from each other in the way of narrating the Prophet's Sunnah. However, these two schools depart from each other in that Sunni school restricts Sunnah to sayings, deeds and approvals of the Prophet, while Shi'ah school extends it to include the sayings, deeds and approvals of the Twelve Shi'ah Imams. In this way, the Shi'ah school inserted into the category of Sunnah a mass of words, deeds and approvals transmitted from the Twelve Imams of Shi'ah after the death of the Prophet as a primary source of law.[28]

Accordingly, a Shi'ah jurist when relying on Sunnah has to look at those rewayat narrated from the Prophet and Twelve Shi'ah Imams and establish whether or not the particular rule was pronounced by the Prophet or Imams.[29] After he establishes the attribution of the statement to the Prophet or one of Imams, he should try to understand his real behaviour. By understanding that he tries to derive the relevant religious rules.[30]

2.1.2 Secondary Sources

There are some other sources which are formally recognised by Shi'ah jurists as the source of the law of Shari'ah. However, the same validity is not given to these sources as to the two previous sources. Thus, in the case of conflict between a source of the second type with that of first type no value is given to the secondary source. These sources are ijma' and a'ql.

2.1.2.1 Ijma'

The term ijma' literally means 'intention to do something' [31] and technically, signifies the unanimous convergence of the views of all reputable jurists of a particular era on a given point of law.[32] No direct Quranic text or tradition, however, exits on the authority of ijma' as a source of law.[33] Accordingly, the mere fact that a particular view is taken by all the qualified jurists of an era on a particular issue does not suffice to make it binding on the qualified jurists of another era. For this reason, Shi'ah jurists have not attached significant contribution to ijma' as a source of law. In their view, ijma' may be seen as a separate source of law where two requirements are met. First, there is no specific authority on a given point of law in either the Quran or the tradition. Second, it has to be possible to demonstrate that this unanimous view did in fact emanate from the Prophet or an Imam, for example because it was based on a particular rewayah from the Prophet or Imam on the issue but which was not recorded in writing.[34]

Such a definition makes the scope of ijma' as a source of law much too narrow. It is in fact an indication of, and its authority is due to, the view of the Prophet or Imams which makes it at best a special appendix to the second source of the law, the tradition rather than a separate source of law.[35] On this construction, unanimous convergence of the jurists on a legal view after the era of Imamah cannot in principle be binding on the jurists of the later time.[36]

Nevertheless, some jurists have tried to establish that the consensus of Shi'ah jurists living in any given era on a particular question of law should be followed as a source of law. In giving validity to such a broad consensus, they linked it to the theory of Imamah and argued that its authority derives from the view of the Absent Imam since a consensus of Shi'ah jurists reflects in fact his view. Historically, Shi'ah jurists have relied on three significant successive theories to demonstrate such a broad construction.[37] First, consensus creates the 'feeling' (hess) that the absent Imam agrees with it.[38] Second, had the absent Imam not agreed with the point at issue, he would, by his 'grace' (lutf), have prevented the formation of the consensus on a wrong opinion.[39] Third, it generates a 'conjecture' (hads), that it accords with the view of the absent Imam.[40]

However, although ijma' in the strict sense may be possible at the period of the Prophet or Imams since the Muslim community had directly obtained the religious precept from the Prophet or Imams, it is arguable in the broad sense. It has rightly been submitted [41] that the theory of ijma' in the latter sense as a source of law was taken out of the Sunni framework and transported with modification into the Shi'ah context. It hardly accords with other tenets of Shi'ah law. Treating ijma' in this sense as a source of law will generate inconsistencies, if not some inherent contradictions, within the distinct Shi'ah doctrine of Ijtehad which generally forbids jurists qualified as Mujtahed to follow others.[42] Moreover, unanimous view may be based on their understanding from a particular rewayah which is not received later by other jurists or was based on supplementary sources such as bana al- u'qala which will be discussed later.[43]

Given the above discussion, it can be said that a particular view being popular among most Shi'ah jurists (which is technically called in Shi'ah jurisprudence "shuhrat fatwaei") should not a fortiori be regarded as an authority for others, although it may be a persuasive source depending on the degree of eminence of the concurring jurists.[44]

2.1.2.2 A'ql

Historically, relying on a'ql (literally, the act of withholding or restraining and in terminology of the jurists, 'human intellect', 'reason') as a source for inferring the law of Shari'ah comes back to the early centuries of the development of Islamic law. However, it has formally been recognised by Shi'ah jurists later than Sunni jurists.[45] During the period of Imamah of Shi'ah Imams since Shi'ah scholars could easily refer the new cases to the Imam and ask the relevant religious precept (hukm), they did not feel the necessity to consider whether human intellect could be relied as a source of the law of Shari'ah, albeit some eminent Shi'ah scholars relied on their rational analysis to extract the detailed rules from the primary sources at a very limited scale. It was only after the Occultation of the Twelfth Imam that the Shi'ah community was forced to infer independently the detailed rules from the primary sources. Yet, up to the early fifth/tenth century no express mention can be found in Shi'ah scholars' works in respect of the 'reason' as a source of law. Some eminent Shi'ah jurists occasionally employed 'reason' for the purpose of inferring detailed rules from the textual authorities but they did not consider it as an independent but only as an ancillary source of law. It was often used in the field of theology (e'lm al- kalam) rather than feqh. The late Ibn Idris (558-598/1163-1203) was perhaps the first Shi'ah jurist who addressed specifically a'ql as a source of law of Shari'ah in Shi'ah jurisprudence.[46] After him the jurists started to examine it as a source of law in the methodology of feqh (e'lm usoul) and currently almost all Shi'ah jurists formally recognise a'ql as a source of law.[47]

Examination of Shi'ah jurists' discussions in respect of the reliability of a'ql as a source of law in the e'lm al- usoul shows that the primary use of this source is where there is no textual source (nass).[48] Where no textual authority is available on a legal point it is generally held that whatever a'ql judges with respect to that issue, share' (the Islamic-law maker) would judge the same. The rule is technically called "qaedah al- mulazemah". The rule is based on two well-settled principles in the Shi'ah school of thought. The First is that "all religious precepts derive from a real interest or expedient (maslahat) and mafsadah (ugliness). That is, in any case in which a particular act is required it is so for a maslahat, or, in any case in which a particular act is prohibited it is so for a mafsadah. Second is that the human intellect in some cases is able to find out certainly what is "good" (hasan) and "evil" (qabih), without being guided by religious rules.[49] In any case where no particular nass exists and the jurist by taking into account the results of scientific research and rational analysis makes certain that a particular act has a maslahat which is to be observed or has a mafsadah which is to be avoided he can judge that that particular act is to be done or avoided (as the case may be).[50]

A'ql is further used to find out the manat (ratio) of the existing rule. That is, if a jurist, by examining the authority, nature and the circumstances in which an existing religious precept was ruled and stripping off the surrounding particularities, can with certainty identify the general philosophy behind the hukm, he would be allowed to apply it at similar situations. The process of finding out the manat, which closely resembles the English law ratio decidendi, is called "tanqih al- manat" (cleaning out the quintessential or the prime criterion).[51]

The third case in which a'ql is used as an authority is where the jurists are seeking to establish general principles upon which the detailed rules can be inferred. Mention may be made here, as examples, of the practical or rational principles (usoul al- a'maliyah or al- a'qliyah).[52] It is also employed to support textual authorities which are available on a specific issue and to understand the real intention of the Islamic-law maker by interpretation of the textual authorities (nusous),[53] and, find out the rational requirements (lawazim -e- a'qli) of the existing rules.[54]

However, in spite of the fact that Shi'ah jurists have formally recognised a'ql as an independent source of the law of Shari'ah and have examined it in detail in the methodology of the jurisprudence (usoul al- feqh) with strong support, they are very cautious and little courage can be found in practice.[55] For this reason, few cases can be found in Shi'ah jurisprudence in which they have relied solely on a'ql as a source to infer the relevant religious precept. In any jurisprudential case where some jurists relied on a'ql as an authority it is in fact employed to support some textual authority (nass) available on the issue. Even in the methodology of feqh where it is often relied on as an authority to establish general principles from which detailed rules can be inferred, it is used as an ancillary authority to support textual authority. No general principle can be found which is solely based on 'reason'. The use of a'ql as a tool to identify manat al- hukm is also subject to a rigid limitation, it must be qate'i (certain) in the mathematical sense.[56] Any uncertainty would make it unreliable.[57] Accordingly, the so-called Rationalist approach is not in the final analysis, a licence to an independent and free rational argument but is in fact an allowance for the limited exercise of 'reason' within the pre-established bounds of basic dogmas. Upon this source it cannot be said that a'ql judges as an independent source, but it is employed as a tool to discover the intention of the Islamic-law maker where there is no direct authority under any of the preceding three sources, to identify the rational requirements (lawazim -e- a'qli) and the philosophy (manat) of the existing rules, to understand the real intention of share' by interpretation of his words and deeds or to support the contents of textual authorities.

2.2 Supplementary Sources

Although it is commonly said that the only sources within which the jurist is required to infer the law of Shari'ah are those described above, these sources have been, and are still being, supplemented by the working of other sources. Among these u'rf (custom), sometimes called bana'at al- u'qala,[58] is of particular significance in practice.[59]

The role of community practice (custom) as a supplementary tool in the process of inferring the law of Shari'ah is, in principle, undeniable. In two cases custom is commonly relied on by the jurists.[60] First is where the Islamic-law maker impliedly referred to the custom. This is where the subject of religious precepts is a customary matter. Reference can be made to those authorities which contained terms such as a'qd (contract), bay' (sale), a'yb (defect), darar (harm) and so on without any reference to the standard of determination of those terms. The second is to find out the concept of words of written authorities (Quran and tradition). To that extent, the jurists accept custom as a source of law without any doubt. But in those cases custom is not relied on to infer the law of Shari'ah but used to identify the object (mesdaq) of the prescribed religious rule or to show the concepts and meanings of the words used in the written authorities so as to establish what is the 'appearance' (zuhour) of the authorities.[61]

However, a controversial question is whether local or national customs can be relied on as a separate source of the law of Shari'ah, particularly where there is no authority from the sources already discussed. In this regard a distinction has been made between those practices which were existent or gradually formed at the time of the Prophet and Shi'ah Imams and those modified or formed later. Shi'ah scholars accept the fact that a number of Quranic rules have their origin in pre-Islamic Arabian customs.[62] The same is true as to the Sunnah. On this fact, it is a well-accepted view that the early Islamic rules, whether prescribed by Quran or contained in the tradition, are divided into 'affirmatory' (imzaei) and 'foundationary' (ta'sisi) precepts, being, respectively, those already existing and upheld and those freshly laid down.[63] On this view, if any particular custom at any era could be linked to the era of the Prophet or Imams it would be reliable even there is no particular formal authority on the issue. However, it is in fact an indication of Sunnah rather than a separate source of law.[64]

The significant question is how far customs formed after the period of Imamah can be relied on by the jurist in inferring the law of Shari'ah. The jurists commonly cast doubt on the authority of such customs as a source of law. According to them the community practice has to follow and accord with the religious rules. The mere fact that a particular act or behaviour becomes a social and legal norm in a society or a local community does not suffice per se to say that it is religiously binding. It could have derived from various factors which were beyond the scope of religion and do not clearly indicate that the Islamic-law maker consented to it. A particular custom will be regarded as a binding religious rule where it is proved that it was formed at the period of the Prophet or one of the Imams and approved by them, whether expressly or impliedly.[65]

2.3 Assessment

The arrangement of sources according to their formal binding force does not necessarily reflect the respective order and significance of the contribution they have to the development of the law under this system. For instance, although the Quran is considered the God-given law and formally remains uppermost,[66] the normative verses (ayat al- ahkam) constitute its small portion (500 out of over 6000 verses) and provide only a small fraction of the overall body of detailed rules of the law of Shari'ah.

In contrast, Sunnah as narrated, apart from the question of authenticity (which is in way akin to the question of the reliability of English case law reporting in medieval times),[67] are considered too important for the jurist. Its significance for Shi'ah law is undeniable. The vacuum left by the few general principles, or scanty and dispersed rules, of Quran on any given legal topic is mostly covered by tradition.[68] However, tradition, although it is many in quantity, can only meet a portion of the modern needs. Masses of new events (masuel mostahdetheh) with which society of the time of the Prophet and Imams was never concerned arose later and must be answered. Today Muslim communities encounter a huge volume of modern situations in their various relationships. Fairly, it is hard to accept that tradition will be an adequate source to meet them.

As regards Ijma', it is fair to say that this source has very little contribution to the detailed rules of law. There are a few cases in which the jurists have relied solely on this source. If it is relied on in some occasions it is in fact as a supplementary source rather than a separate one. Ijma'even in its broad sense, apart from the theoretical objections made as to its authenticity, could play its role in the early stages of the development of Islamic law when the community was fairly small, eminent jurists of the era were few, and the views of all jurists concerned could be obtained. Thereafter its role diminished and it may be said that it soon died out as an active source of the law for the practical impossibility of obtaining it. Accordingly, the only place left for Ijma' as a source of law is the convergence of the jurists of the earlier era obtained directly (which is called Ijma' muhassal) or those consensuses cited by the jurists, that is Ijma' manqoul, although a number of jurists have cast doubt as to the authenticity of the quoted consensuses.[69]

Although a'ql is in theory recognised by Shi'ah jurists and it could have been an important tool for developing this system, in practice little use can be found in jurisprudence to infer the law of Shari'ah. It is relied on primarily to support the textual authority (nass) available on the point or to interpret the text of the written authorities. Although it is also relied on to find out the ratio (e'llaht or manat) of an existing rule in order to extend to the similar situations or to infer a religious precept where there is no textual authority, it is subject to a rigid restriction which is hardly obtainable in practice.[70] This is because few cases can be found where a jurist is able to find out the binding maslah, mafsadah or the ratio of an existing rule with full certainty. In any legal case, some doubt will necessarily exist and consequently, this source, as almost all jurists suggest in the present time, should not be reliable.

Custom and the traditions of the learned (bana'at al- u'qala, pl. of bana' al- u'qala), as already seen, have little contribution to the development of the law in view of Shi'ah jurists. Almost all jurists have seen custom and community practice as a tool for understanding the meaning of the written authorities and identifying the object of prescribed rules. They are not used as separate sources for the law. Resistance on the basis that any community practice should be effectively linked to the period of the Prophet and Imams renders this supplementary source useless, at least at the present time which is so far from that period.

As a general conclusion, it can be said that the significant practical sources in the present Shi'ah jurisprudence are the Quranic normative rules and those contained in rewayat, a mass of scattered texts contain various general and specific rules. But, as any one can easily realise, the legal rules which are prescribed under Quranic verses or those which are contained in the rewayat are (apart from the question of forged rewayat) very limited. They are not able to meet the thousands and thousands of legal issues with which modern societies are concerned. Certain 'practical principles' (usoul -e- a'maliyah) such as isteshab (presumption of the continuance of the status quo ante until the contrary is proved and baraah (acquittal), are, by nature, procedural presumptions rather substantive law. They are not able to meet a mass of modern needs which require substantive law.

2.4 Shi'ah Law and Modern Needs

Shi'ah jurists were and are still confidently claiming that Shi'ah law is able to provide a modern legal system and to tackle any modern needs which arise in any aspect of human life. The establishment of the Islamic Republic of Iran was the first experience for Shi'ah jurists at a large scale to show the capability of Shi'ah law to respond to various modern needs. But after over two decades little development can be found in practice. The significant question is therefore how this system can adapt itself to changing circumstances and provide a proper system of law.

This question has recently attracted the attention of Muslim scholars and entirely different views have been offered. However, some of these suggestions are theological in nature and beyond this study. What follows is an attempt to present a method by which any jurist is able to infer the law of Shari'ah in respect of any new legal issue.[71]

2.4.1 New Reading of the Traditional Sources

As was seen above, the jurists commonly hold that bana'at al- u'qala can be relied on as a source of law only where they were formed at the time of the Prophet or Imams and approved by them. However, approval is defined in a very narrow sense, that is, if a particular public practice is formed within the Muslim community and acted upon at the time of the Prophet or an Imam. In such a situation, the infallible leader (Prophet or Imam) had a duty to lead the Muslim community to the right conduct. If he did not reject that common practice, as contrary to the law of Shari'ah, his silence was an indication of his consent.

When relying on the community practice, it is suggested to distinguish between ibadat (devotional rites) and mua'amalat (social conduct). Where a particular practice emerged in respect of a purely religious rule regulating the relationship of man and God it may be argued that it should be reliable only where it is proved that it was formed at the time of the Prophet or Imam and was approved by them. However, such a rigid requirement is not necessary where a common practice is concerned with regulating the legal relations of individuals and social institutions. It would be sufficient if it is proved that a particular practice becomes common within the community as a whole or a particular community (as the case may be a general custom or a particular one) as long as it does not conflict any settled Islamic rules.

The suggestion can be justified on the basis of the following reasons. First, it is in line with the prophetic rewayah which says: "Whoever establishes a worthy tradition he would be rewarded for any person who acts on it".[72] It can also be justified on the basis of the Quranic verse which provides "ufou bel u'qoud" (You are required to respect your covenant) [73] and the Prophetic rewayah which provides "al- mu'menoun e'nda shuroutehem" (All Muslims should respect their covenants).[74] The terms "u'qoud" and "shurout" (covenants) are general and cover any covenant, whether legal covenant such as contract, or social one. Bana'at al- u'qala formed within Muslim community are in fact social covenants which are gradually formed among them because they felt their existence necessary for their life.

Second, it can be justified on the basis of implied approval (taqrir) of ma'soum (infallible leader) through a new reading of the implied approval. It is suggested that taqrir signifies the approval of any actual or potential practice within the Muslim community. This is based on the well-settled belief between Shi'ah scholars that the Prophet and Shi'ah Imams had divine knowledge and could anticipate that their followers after their period would gradually tend to some practice because of their modern needs and it was their duty to give the Muslim community a guideline to avoid from the formation of and following those common practice which would arise in the future if they did not agree with them. Since they did not reject expressly reliance on practices formed later, despite their anticipation that they may take place, they therefore implicitly recognised those practices formed after their period. Accordingly, it can be said that any rational norm which is fully adopted and acted on by the Muslim community, because they are u'qala, is deemed to have impliedly been approved by the Prophet and Imams.[75]

Bana al- u'qala can also be regarded as a source of the law of Shari'ah in accordance with the theory of hujjiat -e- zann -e- mutlaq (a fully satisfying legal proof of general preponderance) in accordance with the theory of insidad -e- bab -e- e'lm (closure of the door to certain legal knowledge). To explain, at the present time it is conventionally held that the mere zann (conjecture), even a strong one, at a point of law is not valid unless it is specifically validated by some certain Islamic authorities. In this case, those doubtful authorities are called "zann khass" (specific conjecture, as opposed to "general conjecture"). In inferring the law of Shari'ah, the jurist must either rely on an authority which certainly leads him to the religious precept or on those non-certain authorities whose authenticity is certified by a certain authority. In any case where there is no qate'i (certain) authority or authentic zanni authority (which are called "dalil ijtihadi") the jurist is required to rely on some practical authorities (usoul al- amaliyah, which are called "dalil faqahati), that is, baraa'h, ihteyad, takhyir and isteshab.[76]

It is to be noted that these jurists do not deny that if the existing authorities, as already described, are not sufficient to meet the needs the jurist would be able to rely on other conjectural authorities. But in actual fact almost all jurists currently assume that there are sufficient certain and authentic zanni authorities to lead the jurist to the law of Shari'ah in any new situation and in the few circumstances where the jurist is not able to infer the relevant religious precept by referring to those authorities he would be able to resolve the problem by relying on a proper practical principle (asl-e-a'mali). However, this view can only be justified where it is proved that there are sufficient authentic authorities to meet new situations. It is submitted that such authorities are not at hand. It was pointed out before that the Quranic verses and the tradition are insufficient to meet the mass of new questions which arose after the period of the Imamah.[77] The inadequacy of the consensus was also examined. Accordingly, the only way is to rely on the zann where there are no authentic authorities from the Quran and tradition in order to infer the law of Shari'ah. The authenticity of such zanni authorities can be justified by the theory of hujjiat -e- zann -e- mutlaq. A clear instance of such a non-authentic zann is bana al- u'qala..[78]

One may, however, argue that the practical principles (usoul al- amaliyah) such as baraat will operate before these conjectural (zanni) authorities come to operate. It is arguable, since the subject of the practical principles is doubt (shakk) to the religious precept (hukm-e-shar'ei), while it is assumed that for the reason of lack of adequate authentic conjectural authorities e'lm-e-ejmali (literally, general or unspecified knowledge) still remains.[79]

Having proved that bana al- u'qala. can be relied on as a source of Islamic law, the question arises how to identify such a common practice. For this purpose, some concrete guidelines should be provided to lead the jurist who has to rely on this source. It seems that the best and useful solution is to study modern legal systems and international and regional conventions. Any legal rule which has practically been experienced within a legal system and its advantages and disadvantages examined by the courts and academic writers can be taken into account as indication of bana al- u'qala. The jurist would be able to look at the history of formation and development of these rules and their practical merits and demerits to make sure that they are clear indication of bana al- u'qala and then compare them to the settled religious principles. If no contrary rule, whether express or implied can be found, those rules can be accepted as legal rules in the jurisprudence.[80]

2.4.2 New Reading of the Rational Analysis

A further technique which can be utilised to enable this system to adapt itself to changing circumstances is to present a new reading of the rational analysis of the existing rules. It is commonly held that Shi'ah law prohibited the method of applying a straight analogy for the extension of an existing particular rule to a similar instance (qiyas), which is adopted by some Sunni schools.[81] Directly, no existing rule on a 'particular' instance can be extended to another 'particular' instance, no matter how similar the two cases may appear to be. However, the Shi'ah school has recognised a composite analytico-syllogistical process known as tanqih al- manat (or -malak) to circumvent the prohibition of applying qiyas. The method is motivated by some preconception of perfect law. By the process of tanqih al- mamat the basic reason or the core of the rules will first be analytically stripped of the surrounding particularities, and then the generality of the rule so obtained will be applied to the case at hand in the guise of syllogism (qiyas, in a logical sense).[82] Tanqih al- manat in the sense described above, has been, however, made subject to a rigid qualification. By the process of tanqih al- mamat the jurist must certainly discover the criterion of the existing rule. Any doubt as to its real criterion would render the syllogism unreliable.

It seems that such a qualification cannot be acceptable in all cases. It is suggested that a distinction should be made between pure religious laws (ibadat) and legal rules (mua'malat).[83] As regards the first, which regulate the relationship of man and God, it can be said that religious rules requiring man to do or refrain from doing a particular action may be based on a criterion which cannot be identified by human intellect. But such a statement cannot be true as regards those legal rules which are prescribed to regulate the legal relations of human being. Those rules are commonly based on a realisable criterion. Accordingly, it would fairly be possible to realise the real criterion of the existing rules and to extend the rules thus obtained to the new instances. The mere fact that man cannot realise with certainty the real criterion and that in any case there is some possibility that other factors might have been relevant in regulating the existing rule, should not affect the argument. If to that extent the capability of human intellect is doubtful, no where it will be reliable and as a result no jurist can infer the law by the process of ijtehad, since in any case there would be some contrary possibility.[84]

2.4.3 Summary and Conclusions

From the above discussion it was made plain that the Quranic rules and tradition cannot be the adequate sources to meet the new situation. Owing to the impracticability of obtaining it, the consensus of the jurists, unless formed in the initial formative phase of Shi'ah law, has little contribution to the development of the law. Accordingly, the best, and most practical, way to adapt this system to new situations is to rely on rational analysis and well-settled legal practice among human societies. Various arguments were rendered to prove the latter as a valid source for the inference of the legal rules. Likewise, it was seen that rational analysis of existing rules would be an important technique for adaptation of this system to modern needs. There is no reason to justify that the technique of tanqih al- mamat should certainly lead the jurist to the real criterion of the existing rules.

However, in order to make a balance between some of the polarised needs and demands of societies - stability and change, security and flexibility, certainty and adaptability - some concrete guidelines are required. For this purpose, it was suggested that the settled rules in modern legal systems and international and regional conventions can be useful solutions for this system in order to identify the common practice of the learned (bana al- u'qala.).

CHAPTER TWO. Buyer's Right to Specific Performance

The contract is made to be performed. However, it is not infrequent that the seller seeks to evade performance of his own part in order to escape from a bad bargain. In such cases the buyer who is aggrieved by the seller's failure to perform the contract may wish to have in specie what he bargained for.[85] For this purpose, he may need the assistance of the judicial authorities to issue a decree ordering the seller to carry out his contractual obligations.

This demand has not been seriously taken into account in English sale of goods law. Although English Sale of Goods Act 1979 has addressed 'specific performance' in s. 52, it does not recognise it as a right for a victim of breach but it is a form of relief that is left to the discretion of the court and, as will be shown later, English courts are very reluctant to use this discretionary power in contracts for the sale of goods.[86] By way of contrast, the Convention has recognised specific performance as a general remedy (Art. 46).

Likewise, Iranian Civil Code has given the primacy to specific performance.[87] However, the Code failed to deal with the issue in way consisting with the modern sale transaction. In Shi'ah law, notwithstanding the primacy is given to this remedy,[88] Shi'ah jurists have failed to discuss this remedy in detail. It is, therefore, necessary to deal with the issue first under English law and the Convention in order to identity the modern needs and then to examine them under these two systems.

PART ONE. English Law

1. INTRODUCTION

As already indicated, it is a well-known fact that English law does not recognise specific performance as a right for a victim of breach and that English courts are very reluctant to decree specific performance of contracts for the sale of goods. The reluctance of English courts to recognise such a right has a long history and the present study is not a proper place to examine the reasons for such a reluctance. For the present purpose it suffices to say that, historically, English law gives priority to compensation by way of awarding damages. No considerable significance has been given to the idea of compensating an injured buyer by ordering the defaulting seller to carry out what he promised.[89] However, despite the reluctance of the common law courts to accept the remedy of specific performance, courts of equity have gradually recognised specific performance as a remedy.[90] It originated in the realisation that there are many cases in which the remedy available at common law is not adequate.[91] This remedy, as will be seen below, is a form of relief that is left to the discretion of the court rather than the victim of breach. This equitable remedy's main application was in land disputes,[92] but the English courts have extended the remedy to sale of goods cases and subsequently took statutory form and it is now regulated by s. 52 of the Sale of Goods Act 1979.[93]

2. REQUIREMENTS FOR RESORTING TO THE REMEDY

Under s. 52, an order requiring the seller to deliver the goods will only be made if the following requirements are fulfilled. First is the goods must be delivered are "specific" or "ascertained". Secondly, the court must "think fit" the grant of an order for specific performance.

2.1 Where Goods are "Specific" or "Ascertained"

The first requirement which appears from this section for resorting to this remedy is that the subject of sale must be "specific", or, "ascertained" goods. This requirement raises some questions: what is meant by the term 'specific goods'? What is the position of 'goods to be produced'? In other words, does the requirement that the goods must be 'specific' mean that at the time of conclusion of the contract they must exist and the seller possesses them?

2.1.1 Specific Goods

"Specific goods" are defined by s. 61(1) of the Act as being goods "identified and agreed upon at the time the contract is made". That is, at the time of making the contract the parties agreed to designate the subject-matter of the contract as particular goods to be delivered by the seller in performance of his obligation; their individuality is established, so that there is no room for further selection or substitution.[94]

As far as the present discussion is concerned, the most practical question which arises here is whether non-existent goods such as "future goods", "goods to be manufactured or acquired by the seller after the conclusion of the contract" can be placed into the category of 'specific goods' for the purpose of application of s. 52. In this connection, some authors have shown that no clear answer can be found in case law.[95] For instance, in a case decided before the Sale of Goods Act was passed,[96] the court held that a contract to sell 200 tons of potatoes from a particular crop to be grown by the seller was to be a sale of "specific" goods for the purpose of treating the contract as frustrated under the rule in Taylor v. Caldwell.[97] Similarly, in Varley v. Whipp [98] the court considered a reaping machine to be specific goods, when the contract was for the sale of a specific second-hand self-binder reaping machine which at the time of making the contract, the seller did not possess and had still to acquire. Nevertheless, in In re Wait,[99] it was said that the plain language of the Act leaves no room for giving such a so wide meaning to the term "specific goods", so far as the application of the Act is concerned.

Academic writers have also taken up different opinions. For instance, Professor Treitel suggested [100] that there is no linguistic difficulty or logical reason in identifying and agreeing on such goods as specific goods. Accordingly, where a contract is made to buy a certain quantity of cars to be come from the seller's factory the subject-matter of the contract seems to be identified and agreed upon, even if it does not yet exist, at the time the contract is made. In contrast, some others have said that "it is probably safe to say that future goods can never be specific goods within the meaning of the Act."[101] But in response to the latter view it has been said that although there is reason enough for acceptance of this view in the context of passing of property,[102] there is nothing which requires one to read into the definition of "specific goods" a condition that they should presently exist.[103]

As far as the language of the Sale of Goods Act is concerned, one may argue that there is, generally, no logical reason for the non-application of s. 52 of the Act to non-existent goods. For, on the one hand, the definition of specific goods in s. 61 is not conditional on the goods existing when the contract is made. Again, non-existent goods are not excluded by the provision of s. 61(1) of the Act. On the other, the goods may be described definitely, particularly and specifically although they are non-existent. It can therefore be suggested that future goods can be the subject of specific performance, so long as, they are identified and agreed upon by the parties, and they can be considered as a specific goods when they are sufficiently identified. Accordingly, the main basis for considering the goods as specific, is the agreement of the contracting parties in respect of the goods, specifying them in a way which leads to no misleading, ambiguity or vagueness about their nature, quality or quantity, no matter whether they presently exist or not, or whether they have been produced or will be produced in the future.

However, it would be better to make a distinction between two different types of future goods: those which are non-existent and those which exist but are not yet owned by the seller. In addition, non-existent goods can be further sub-divided into crops (etc.) to be grown and products to be manufactured. One may argue that the treatment of these different items should differ: for instance, where the seller contracts to sell a particular item which he has not yet bought - as in Varley v. Whipp - then the goods clearly are specific. The position is different where the contract is to sell something not yet in existence. However, it is easier to regard a particular item to be manufactured as "specific" than items to be grown - as in Howell v Coupland etc. - unless the contract is something like to deliver "the first 1000 tonnes harvested from a particular field".

2.1.2 Ascertained Goods

Unlike the term 'specific goods', the expression "ascertained goods" is not defined by the Act. However, case law has made efforts to define the term. For instance, in In re Wait,[104] Atkin L.J. observed that in the present context,

"'Ascertained' probably means identified in accordance with the agreement after the time a contract of sale is made".[105]

According to the above definition, the term means goods originally unascertained which are identified in accordance with the parties' subsequent agreement after the contract of sale is made. However, in Thames Sack and Bag Co. Ltd. v. Knowles & Co. Ltd it was said that

"ascertained" in s. 52 "means that the individuality of the goods must in some way be found out, and when it is, then the goods have been ascertained".[106]

Similarly, in Wait & James v. Midland Bank,[107] it was stated that "ascertainment" might take place by any method which is satisfactory to the parties concerned. Moreover, a part of the goods purchased from a bulk which is specified, may become ascertained by process of exhaustion, which, was said to be "the only effective way of ascertaining the goods which are in bulk".[108]

Examination of the above-mentioned cases shows that the term "ascertained" refers to some process subsequent to the contract by which goods are sufficiently [109] identified or otherwise earmarked by the seller as goods he intends to use in performance of the contract.[110] However, there will be no ascertainment of part of a larger bulk of goods until the part has been actually or by way of exhaustion earmarked and segregated from the bulk.[111]

2.1.3 Specific Performance and Unascertained Goods

On its face s. 52 appears to apply only where the goods to be delivered are of specific or being sufficiently ascertained after the contract is made and therefore does not apply to an important category of contracts, those for sale of unascertained goods still to be ascertained. Accordingly, the buyer will not benefit from the provision under s. 52 where the seller has failed to perform his delivery obligations where the goods which should be delivered to the buyer under the contract are not sufficiently ascertained.[112]

Yet, the question is not so clear as it seems in its apparent face. On the one hand, it might be argued that where the language of s. 52 is combined with the belief that the Sale of Goods Act is designed to provide a comprehensive code, one may conclude that the remedy will not arise where there is a contract for the sale of unascertained goods not yet ascertained.[113] On the other hand, there is a possibility to say that s. 52 may be applied to the case of unascertained goods. This is because first, the language of the section itself does not seem to exclude expressly its application to such cases. Secondly, the idea that the Sale of Goods Act is a comprehensive code is arguable.[114] Accordingly, the answer depends on whether or not the Act presents an exclusive code of remedies available.

The question was particularly addressed in In re Wait.[115] In that case, Atkin L.J. took the view that where a matter is dealt with by the Act, the treatment was intended to be exhaustive.[116] Unlike the firm view of Atkin L.J. that s. 52 codifies the buyer's rights, in Sky Petroleum Ltd. v. VIP Petroleum Ltd [117] some doubt was thrown on the traditional idea.[118] In that case, the judge did, in fact, grant specific performance of a contract for unascertained goods.

Although the decision in Sky Petroleum may be welcomed as commercially realistic, it is hard to reconcile with the language of s. 52(1) of the Act and with both earlier and subsequent authorities.[119] Moreover, neither s. 52 nor In re Wait were referred to in the judgement. Accordingly, it is difficult to say that in the case of unascertained goods not yet ascertained the buyer can apply for specific performance. In addition, assuming that the jurisdiction to award specific performance exists where the subject of sale is unascertained goods, it is likely to be exercised only rarely, for by definition, unascertained goods will rarely be unique. As a result, the court would hold that damages will be an adequate remedy.

Moreover, the case may be, as Goulding J. himself pointed out in his judgement, justified on the special facts of the case. In a case of the nature of Sky Petroleum no question of specific performance would normally arise because the filling station could go and buy petrol on the market and be compensated adequately by damages, but at the time of the case, because of the Arab oil embargo and the related events of 1973, there was little prospect of the plaintiffs being able to procure alternative supplies from another source so that alternative supplies were not available to the buyers. Moreover, as some authors pointed out,[120] in the particular case a substantial part of the buyers' loss would not have been recoverable in damages because of the remoteness rule. In addition to the above-mentioned factors, in that case damages would clearly not be an adequate remedy because, as Professor Atiyah pointed out,[121] "there was a real danger that the plaintiffs would be forced out of business if the defendants broke their contract in the very peculiar circumstances then holding".[122] In the circumstances of that case, specific performance was a uniquely desirable and effective remedy. It was in fact such peculiar circumstances which induced the judge to depart from the general rule.

2.2 When the Court Thinks Fit

The important feature of specific performance in English law is that it is not granted as a matter of right to the aggrieved party seeking remedy, but it is an equitable jurisdiction whose exercise is left to the court's discretion.[123] This is confirmed by the Sale of Goods Act 1979 which does not require the court to give effect the buyer's application for specific performance but gives the court a broad power to give an order for specific performance "if it thinks fit".

However, it is to be stressed that this does not mean that the decision is left to the uncontrolled fancy of any individual judge. A court may refuse to give effect the buyer's application for specific performance, if to grant it in the particular circumstances of the case will defeat the ends of justice.[124] For instance, Lord Parker, explaining the rule, observed:

"Indeed, the dominant principle has always been that equity will only grant specific performance if, under all the circumstances, it is just and equitable so to do."[125]

2.3 Grounds for Refusing to Order Specific Performance

Exercise of the court's discretion to award specific performance is guided by certain principles. For instance, the court will generally not order specific performance of a contract which involves personal services [126] or which requires constant supervision by the court.[127] However, as far as sale of goods cases are concerned the adequacy of damages rule is the main restriction on the remedy of specific performance.[128]

Under this rule, where complete justice can be achieved by damages, the plaintiff will be left to his remedy at law.[129] In other words, the court gives specific performance instead of damages, only when it can by that means do more perfect and complete justice.[130]

There is no clear rule by which the court can always examine the adequacy of damages test. Generally, where damages fail to afford a complete remedy to the aggrieved party,[131] or the amount of damages is impossible to be assessed,[132] they are considered an inadequate remedy, and, consequently, specific performance is granted. The court will refuse to grant specific performance when the plaintiff is able to obtain the equivalent to what he has contracted for by damages.[133]

A clear instance can be found in Behnke v. Bede Shipping Co. Ltd..[134] In this case, specific performance was granted because the subject-matter of the sale was a unique thing, i.e., a ship. However, it is not accurate to say that the buyer of a ship will always be able to resort to the provision of s. 52. In CN Marine Inc. v. Stena Line (The Stena Nautica (no. 2)),[135] it was held that as a matter of law, an order for specific performance could be made in respect of a vessel but it, in no way, follows that there should be an order for specific performance in respect of every contract for the sale of a ship.

The court's reluctance to grant specific performance is illustrated by the case of Societe Des Industries Metallurgiques S.A. v. Bronx Engineering Co. Ltd.[136] In this case, the defendants had wrongfully repudiated a contract to deliver goods manufactured by them to the plaintiffs. Although the subject of sale was over 220 tons in weight and cost around £270, 000, the evidence showed that it would take the plaintiffs between nine to twelve months to obtain similar goods from an alternative source. Even this serious delay failed to persuade the Court of Appeal that the case was a proper one for grant of specific performance, for the goods were of a type obtainable on the market in the ordinary course of business [137] and the additional loss suffered by the plaintiffs as the result of the delay would be covered by an increased award of damages.

Damages may be inadequate, even when the buyer can buy goods similar to those in the contract, if the fluctuation of the price is so great, that the party who is obliged to accept damages cannot be sure of being put in as good a position as he would have been if the contract were specifically performed and the goods supplied.[138] Furthermore, where the goods or items are unique, specific performance may be granted. Thus, "the more unusual the subject-matter of the contract, the more difficult it becomes to assess the plaintiff's loss'',[139] and "damages can be readily assessed but not so easily collected".[140] Nor can damages be described as an adequate remedy when the defendant is unable to pay for them, because of his insolvency.[141] Under these circumstances specific performance is justified and will be decreed.[142]

Whether damages are adequate remedy is a question of fact in each case which is to be decided according to the circumstances of any particular case. Accordingly, "[I]t is unsafe to rely on decisions reached on other contracts and in other circumstances''.[143] It seems that the exercising of the inherent discretionary power by the court, varies from one court to another, and there are no reliable criteria to justify or predict the conduct of the court in ordering specific performance or granting damages in a case where there are specific or ascertained goods, such as a ship or a machinery or some articles which are not easily obtainable.[144]

However, it is to be emphasised that it does not follow that specific performance will necessarily be granted because damages are not an adequate compensation. Above all, the onus is upon the plaintiff to justify the claim that damages would not achieve justice and that he "the plaintiff" should not be compelled to accept them.[145] The plaintiff may fail to prove that the goods are unique, and consequently will not obtain specific performance, but damages. The court will generally enquire in any case into all the circumstances, in particular any hardship which would be imposed on one party or the other by giving or refusing specific performance. This reflects a combination of two policies; the general feeling that specific performance is usually not necessary in the case of goods and the general equitable principle that specific performance is not be granted mechanically and that all the circumstances are to be considered.[146]

3. RIGHT TO DEMAND CURE

We have been so far concerned with the question of specific performance under English law in general. It has been made clear that this legal system gives little chance to an aggrieved buyer to resort to the remedy of specific performance. And it has also been seen that even within the discretionary power given to the courts to grant specific performance under certain circumstances, in exercising the power, the English courts are very reluctant to use this power in favour of the plaintiff.

The position of the right to request the seller to cure the non-conformity is not much better than that of specific performance in general. In fact, failure to recognise a general right to cure for an aggrieved buyer can be justified on the grounds that English law gives priority to the compensation by damages.

As a general rule, the English Sale of Goods Act does not recognise a general right for the buyer to demand the cure. Case law lacks any legal statement indicating the recognition of such a right. Academic writers have shown little tendency to accept such a right. Accordingly, it can be said with certainty that under English law an aggrieved buyer has no general right to demand that the seller cure his defective performance. Any offer from the buyer to the seller for cure can be rejected by the seller unless the case places into the category discussed above, though if the seller accepts his offer he must perform his duty.[147] However, as fully discussed in a separate paper when dealing with the seller's right to cure,[148] according to one interpretation, where the buyer lawfully rejects the seller's non-conforming delivery without terminating the contract the Sale of Goods Act enables the buyer to permit the seller to cure his defective delivery and, to that extent, to request cure.[149]

Buyer's Right to Demand Cure and s. 52 of the 1979 Act. As the law stands presently, in English law, where the seller has made defective delivery the buyer is primarily entitled to reject the non-conforming delivery and terminate the contract and/or claim for damages, as some authors suggest, or to reject it and wait for seller's cure and/or claim for damages, as others suggest.[150] However, the question arises whether an injured buyer who has lawfully rejected the non-conforming goods is entitled to require the seller to cure his defective performance on account of s. 52 of the Act. As far as the language of the section is concerned, there is no linguistic difficulty in recognising a limited right for an aggrieved buyer to demand that the seller cure within the scope of the section.[151] The reason is that a demand to cure the non-conformity, whether by delivery of substitute goods or repair the defects, is in fact, a particular form of requiring to perform the contractual obligations specifically. In other words, the buyer demands the seller to perform his duty to deliver goods conforming with the contract terms (s. 27 of the 1979 Act). Accordingly, for this purpose, an injured buyer may be entitled to apply the court for a decree ordering the seller to tender conforming goods or to repair the defective goods provided that the requirements of s. 52 are met. That is, the purchased goods are of commercially unique kind, such as ship, machinery that could not readily be obtainable elsewhere, or the seller is the sole manufacturer so that the buyer cannot obtain them in the market or damages do not afford an adequate remedy to him. Under such circumstances, the court may exercise its discretionary power to order the seller to cure non-conforming goods.

However, as far as the right to demand cure by repair is concerned, the buyer will have little chance to persuade the court to give effect to his application, since cure by repair will normally involve personal services and require constant supervision by the court in which circumstances the English courts, as pointed out above, are reluctant to order the party to perform his obligations specifically.[152] Moreover, in the case of sale of unascertained goods, it is quite possible to say that the buyer is not basically entitled to demand the seller for delivery of replacement. For, after rejection of non-conforming goods the substitute goods are not ascertained. Accordingly, the case will be outside the scope of s. 52.

PART TWO: The Convention

1. INTRODUCTION

As stated in the general introduction, specific performance is, in principle, recognised by the Convention under Art. 46, by virtue of which the buyer is given an option to "require performance by the seller of [his] obligations ..." The remedy may be exercised in one of the three following forms. As long as the seller has not delivered the goods or the relevant documents, the buyer is given a right to demand that the seller deliver the goods or documents (Art. 46(1)). Where delivery has already been made, but the goods delivered do not conform with the contract requirements sub-paras. (2) and (3) of Art. 46 provide for the buyer two further variants of specific performance, allowing him to: demand that the seller in breach supply substitute goods or repair the non-conforming goods.

2. SPECIFIC PERFORMANCE

By virtue of Art. 46(1) of the Convention, "The buyer may [153] require performance by the seller of his obligations unless the buyer has resorted to a remedy which is inconsistent with such requirements." The language of the provision seems broad in scope. It may be invoked in a wide variety of circumstances. It does not make any distinction between different sorts of breaches. The buyer can, therefore, require the seller to perform all "his obligations" under the contract and the Convention. The most common example is when the seller fails to procure or produce the goods or to deliver them at the right place (Art. 31) or date (Art. 33) provided by the contract.[154] It may also be resorted to where part of the purchased goods are missing, or, the seller refuses to hand over the documents and do all other acts necessary to fulfil the contract as originally agreed.[155]

3. RIGHT TO DEMAND CURE

As indicated above, the right of the buyer to demand that the seller cure the non-conforming delivery may be exercised in the form of requiring him to tender substitute goods or to repair the defect in the goods. It is to be noted that although the language of Art. 46(2) and (3) shows that the remedies provided under these two sub-paragraphs are separate remedies, they are not to be regarded as alternatives but can both be resorted to in the same case. Thus, it is possible for a buyer to request both substitute goods and the repair of goods depending on the circumstances. For instance, the seller may only be able to supply a portion of replacement goods but be in a position to repair the remainder of the defective goods.[156]

3.1 Demand Substitute Goods

Art. 46(2) of the Convention gives the buyer a right to request the seller to deliver replacement goods where the latter has delivered non-conforming goods. However, since it could be expected that the cost of shipping a second lot of goods to the buyer and of disposing of the non-conforming goods already delivered might be considerably greater than the buyer's loss from having non-conforming goods, the Convention adopts the approach that a buyer will be entitled to resort to require the seller to deliver replacement goods only where the non-conformity is serious enough to constitute a 'fundamental breach'. Accordingly, relatively trivial defects do not justify a claim for substitute delivery, though in appropriate cases they may entitle the buyer to require the seller to remedy the lack of conformity by repair (Art. 46(3)).[157]

The question which arises here is whether the buyer of specific goods can require the seller to deliver substitute goods on the basis of para. (2) of Art. 46. Although the question was expressly addressed by ULIS, which provided that the buyer could only require the seller to deliver substitute goods where the sale related to unascertained goods,[158] the present Convention does not expressly state that the remedy should only be applied to unascertained goods. Nevertheless, it seems that the same rule should be applied here since under a contract for specific goods the seller has not undertaken any duty other than to deliver the particular goods. Requiring him to deliver substitute goods would be contrary to the mutual agreement of the contracting parties.[159] However, it should be stressed that in the case of sale of unascertained goods, the buyer is not required to request delivery of substitute goods; he can keep the defective goods and resort to the remedy of requiring the seller to repair the lack of conformity.[160]

The buyer may also be entitled to require delivery of substitute goods where the seller's delivery only partially fails to conform with the contract. Art. 51, addressing the question, provides: "If only part of the delivered goods is in conformity with the contract, Arts. 46 to 50 apply in respect of the part ... which does not conform." Thus, by virtue of Arts. 46(2) and 51(1) the buyer may accept the conforming parts and require the seller to deliver substitute conforming goods for the defective units, provided that the lack of conformity constitutes a fundamental breach of the contract with respect to the part affected.

3.2 Demand Repair

The remedy seems slightly stronger than that which is provided under Art. 46(2).[161] The latter, as already seen, will be available only when the non-conformity constitutes a fundamental breach of contract, while the former will be available "unless this is unreasonable having regard to all the circumstances" (Art. 46(3). According to the wide language of the provision the buyer will have a general right to require the seller to cure any form of lack of conformity by way of repair except in cases where it is unreasonable, having regard to all the circumstances.

The flexible language of the provision is designed to encourage a reasonable and flexible approach to cases where the buyer can readily make repair, particularly when the seller's facilities for repair are in a distant country. Accordingly, a buyer will not be entitled to require the seller to make good minor defects which can readily be repaired by him.

The reasonableness of the request to repair does not depend on the nature of breach, but, as some commentators have suggested,[162] on the character of the goods delivered, technical difficulties and all the other circumstances. It would, for instance, be so regarded if repair is impossible, whether because of the nature of the goods, such as agricultural products, or because of technical difficulties. A claim for repair may also be unreasonable if the costs involved are disproportionate to the price of the goods or if the seller is a dealer who does not have the means for repair, or if the buyer himself can repair the goods at least cost.[163]

However, the Convention does not expressly provide that the right to ask for supply of substitute goods should be subject to some requirements such as, economic facility or even practical possibility. Accordingly, the question which arises here is: is the right to be subject to some qualification, and, if so, what degree of "difficulty" or "impossibility" should be sufficient to free the seller of his obligation to deliver substitute goods?[164] It seems that the remedy under Art. 46(2) is to be restricted to the same qualification to which the remedy of repair under paragraph (3) of the Art. is made. There is no clear argument to distinguish these two remedies which are in fact both particular forms of the general right to specific performance.

The point which deserves to be noted here is that unlike ULIS which entitled the buyer to require the seller to repair provided that the seller was also manufacturer of the goods,[165] under the present Convention such a right exists, no matter whether the seller is in a position to repair the goods by his own means or by utilising the facilities of the market. If he is not in a position to do so at all, this could indeed amount to unreasonableness. However, it should be mentioned that the mere fact that repair is not possible, does not automatically turn the defect into a fundamental breach of contract. But the buyer is left only with the right to claim a reduction of price and/or compensation for damages.[166]

4. RESTRICTIONS ON THE REMEDY

Despite the broad language of Art. 46, the buyer's remedies under this Art. are subject to a number of substantial restrictions. These restrictions differ according to whether the case involves a claim under the first paragraph of Art. 46 or the second or third.[167]

4.1 Resorting to an Inconsistent Remedy

The first restriction is expressed by Art. 46(1). By virtue of this sub-paragraph, the buyer will be entitled to apply for specific performance only when he has not "resorted to a remedy which is inconsistent with this requirement". Despite the express language of this provision, it is not quite clear which remedies are incompatible with the remedy of requiring performance. The buyer's exercise of his right to declare the contract avoided would certainly be an "inconsistent" remedy for this purpose.[168] This inconsistency will become plain when we look at what Art. 81 provides. Under this Art., avoidance "releases both parties from their obligations under [the contract] subject to any damages that may be due." The same is true in the case where the buyer has claimed price reduction in the case of non-conforming delivery pursuant to Art. 50,[169] since it would re-establish equivalence.[170]

The question whether a claim for damages would be an inconsistent remedy, depriving the buyer of the right to require performance gives rise to some doubt. What is certain is that, under the Convention, the buyer is not deprived of his right to claim damages by exercising his right to claim performance (Art. 45(2); but is the converse necessarily true? The Convention does not make the position clear. It has, therefore, been suggested that a distinction must be drawn between the case of a claim for damages for late delivery and that of non-delivery.[171] Where the buyer has claimed damages for delay in delivery he would not be pursuing a remedy 'inconsistent' with that of requiring performance,[172] while a claim for damages for non-delivery would be inconsistent with requiring performance, since such a claim for damages can only be brought 'If the contract is avoided'.[173]

Although the requirement is expressly provided under Sub-para. (1) of Art. 46, it seems that the buyer's right to resort to the remedies under sub-paras. (2) and (3) of this Art. should also be subject to the same requirement; the buyer will not be entitled to require the seller to deliver replacement goods or repair defects in the goods where he has already resorted to an inconsistent remedy.

4.2 Forum Approach Rule

A further restriction is provided under Art. 28. Pursuant to this Art., "a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention." The provision which is designed to compromise the divergent common law and civil law perceptions of the role of specific performance in sales contracts of movables, empowers the state members' courts to follow their traditional position. Three different situations may arise in this connection. The first is where the court is under a mandatory duty to order specific performance under domestic law. In this case, the court is bound to accept the buyer's application for specific performance where the required conditions under the Convention are met. The second is an extreme situation where the national law disallows the court to order specific performance. In this case, the court is not bound to disregard its domestic law and to give effect to the buyer's application even though the requisite requirements provided by the Convention are met. But, it has discretion to decide the case either on the basis of the Convention or domestic law.[174] The third case is where the court under the national law has a discretion as to whether or not to accept the buyer's application. The question is whether the court would still be free to continue its discretion under national law or it becomes bound to decide the case on the Convention provisions. The answer depends upon how the word "would" in Art. 28 is interpreted. Does the phrase under Art. 28 "unless the court would do so under its own law ..." include the case where the court could accept the buyer's application under the national law? It seems that the legislative history of Art. 28 suggests that in the latter case the court would be able to disregard the Convention provision. This is because the UNCITRAL Draft Art. 28 used the word "could" instead of "would". Under that version, the court was certainly bound to give effect to the buyer's application even it has discretion under its domestic law in the similar cases. However, at the Vienna Diplomatic Conference, some common law delegates opposed to this wording and as a result, the word replaced by "would".[175]

It is to be noted that Art. 28 only permits the court to deviate from the rules of the Convention where the buyer may "require performance of any obligation of the other party"; it does not affect the Convention's restrictions on specific performance.[176] For this reason the buyer cannot, relying on the law of forum, seek to require a seller to deliver substitute goods even though the lack of conformity is not a fundamental breach as required by Art. 46(2), or seek for repair of the goods even though, pursuant to Art. 46(3), under "all the circumstances" requiring the seller to repair is "unreasonable". Art. 28 applies only when the buyer is entitled to performance in accordance with the provisions of this Convention.[177]

The Forum Approach Rule and the Remedy of Repair. As the language of Art. 28 shows, the Art. only refers to the term "specific performance". The question arises here is whether the restrictive aspect of the provision covers the remedies of requiring the seller to deliver substitute goods and repair defects. The answer depends on the meaning of "specific performance" under Art. 28. The Secretariat' Commentary makes it clear that it does include an order requiring the seller to deliver goods pursuant to Art. 46(2).[178] Does it include, in addition, an order requiring the seller to remedy the defects by repair under Art. 46(3)?

The drafting history of the Art. does not help. During the preparation of the Convention the question whether an order for repair should be covered by Art. 28 was not addressed. The Secretariat Commentary also lacks any guideline in this respect, since the remedy was not included in the 1978 Draft Convention recommended by UNCITRAL. It is therefore difficult to determine whether the restriction under Art. 28 applies to an order requiring the seller to repair defective goods under Art. 46(3).

Considering the purpose of Art. 28, one may, however, reach the conclusion that the objections to an order requiring a seller to deliver contract goods or substitute goods should apply as well to an order requiring the seller to make repairs, since in all of these cases, the court is indeed requiring the seller to perform one of his obligations.[179] Nevertheless, treating an order to require the seller to make repair as an order for specific performance would result in an unreasonable consequence. Accepting the view that the right under Art. 46(3) is enforceable subject to the court's discretion under Art. 28 would severely restrict this remedy, since many legal systems are not familiar with it in their domestic law.[180] The legislative history of the provision shows that the remedy was adopted as an alternative to the remedy of requiring the seller to deliver substitute goods where the delivery of them clearly would be wasteful.[181] If an order to repair is treated as an order to perform which is subject to the discretionary power of the courts under Art. 28, this alternative remedy may rarely be invoked because most courts could disregard it as a remedy inconsistent with their national law. Such an interpretation would substantially restrict the effect of this remedy which seems to be far from what the drafters had intended in incorporation of it into Art. 46.

It is difficult to find a solution for this problem. Both the language and purpose of Art. 28 support the approach that an order to make repair is to be subject to the restrictive provision under Art. 28. Accordingly, the courts have the power to treat an application for repair as they do one for the other forms of specific performance.[182]

4.3 Time Limit Restriction

The Convention provides a further requirement which is applicable to the remedies prescribed under Art. 46(2) and (3). Under this requirement the buyer must request supply of substitute goods or repair from the seller in conjunction with notice he has to give under Art. 39 so as to inform the seller of the lack of conformity (Art. 46(2) and (3).[183] If the buyer does not request cure at the very moment of giving notice, he has to do so within a reasonable time after he has given notice to the seller that the goods delivered do not correspond to the contract. Failure to request the remedy either in conjunction with the notice given under Art. 39 or within a reasonable time thereafter would deprive him of the right to require the seller to deliver substitute goods or repair the defects. On this provision, in the case of latent defects the buyer may be entitled to demand that the seller cure the lack of conformity up to two years from the date in which the goods are actually handed over to him.

4.4 Whether Goods Must be Ascertained?

The question arises here whether the goods must be identified before the buyer of unascertained goods can resort to the remedy of specific performance. As far as Art. 46 is concerned, it does not expressly provide that the goods are to be identified to the contract before the buyer can resort to the remedy. Nor can such a requirement be inferred from Art. 46. Accordingly, in the case of sale of unascertained goods, identification of the goods to the contract should not be regarded as a pre-requisite to a claim for the remedy of requiring performance.[184]

On this interpretation, if a contract, for example, requires the seller to arrange for shipment, the seller would be in breach of contract if he fails to do so [185] and as a result the goods are not marked or otherwise identified. The seller's failure to arrange for shipment is presumably a breach of one of his obligations under the contract and Art. 46(1) may thereby entitle the buyer to apply for an order requiring the seller to arrange for carriage of the contract goods.

4.5 Whether the Purchased Goods Should be Unavailable in the Market?

A further possible restriction is that the buyer seeking to resort to the remedy is required to show that he cannot reasonably procure the purchased goods from another source. The Convention does not expressly provide this requirement. However, a close interpretation of the relevant provisions of the Convention, particularly, taking into consideration the drafting history clearly supports the conclusion that resorting to the remedy does not require the buyer to demonstrate that he is not able to obtain equivalent goods from another source before he can resort to the remedy.

Art. 25 of ULIS precluded the buyer from requiring performance by the seller "if it is in conformity with usage and reasonably possible for the buyer to purchase goods to replace those to which the contract relates."[186] An UNCITRAL Special Working Group proposed a version of what is now Art. 46 which retained the language of Art. 25 of the ULIS.[187] However, the UNCITRAL Committee rejected this version of the Art. In justifying its rejection, the Committee noted that "the proposal, if accepted, would unjustifiably restrict the rights of the buyer to require performance of the contract".[188] Again, in response to the 1978 Draft Convention, the United States delegate proposed a new paragraph for what is now Art. 46, by which the buyer could not resort to the remedy where he "can purchase substitute goods without substantial additional expense or inconvenience".[189] The proposal was repeated by the same delegate at the 1980 Vienna Diplomatic Conference,[190] but it was also rejected by the majority.[191] Likewise, the legislative history of Art. 77 of the Convention shows that the United States delegate made efforts to amend Art. 77 to minimise any claim against the party in breach if the injured party failed to mitigate damages. The language of the proposal was broad and would have applied to any form of relief,[192] but that proposal was also defeated.[193] Relying on the foregoing arguments, as some commentators concluded,[194] it can be said that Art. 46 does not require the unavailability of substitute purchase as a pre-requisite for ordering specific performance.

4.6 Rule of Mitigation

As explained above, the remedy of requiring performance is not excluded merely because the buyer could, acting reasonably, have found a substitute source. However, is there any way to say that the deficiency arising from the lack of a particular provision restricting the buyer's right to specific performance to the case of lack of equivalent goods could be compensated by the principle of mitigation of damages provided by Art. 77? By virtue of this Art., an injured buyer is required to take reasonable steps to mitigate his losses caused by the seller's default. This presumably includes the purchase of substitute goods by the buyer. Assuming that the Art. applies to Art. 46, then it would effectively restrict the buyer's right under Art. 46 whenever substitute goods are reasonably available. In other words, Art. 77 would mean that the buyer must mitigate loss through the choice of remedy.

However, the language of the Convention on this point is not clear and the commentators differ. Some of them suggest that the duty to mitigate would be important to prevent injustice and waste resulting from the exercise of specific performance.[195] In contrast, others, relying on the drafting history of Art. 77,[196] conclude that an aggrieved buyer's failure to mitigate his loss is irrelevant when he applies for an order requiring performance in a jurisdiction where domestic law authorises this broad approach to "requiring performance" under the Convention.[197]

Nevertheless, it seems that the language of Art. 77, the structure of the Convention and its drafting history do not support the idea that the mitigation principle is a restriction on the right to specific performance under the Convention. First, the second sentence of Art. 77 continues that if the party relying on the breach "fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated". As can be seen, the provision is hardly expressed as a bar to requiring performance. It simply specifies the consequences for failure to mitigate one's loss: The party in breach may only claim a reduction in damages.[198] Under this wording, the duty to mitigate only applies when the injured party claims damages, not when that party resorts to the right to require performance.[199] Secondly, Art. 77 is placed within a section of the Convention which contains the rules governing the entitlement to claim "damages". Art. 45, which specifies the remedies available to a buyer, distinguishes between the rights established in Arts. 46 to 52 and damages as provided in Arts. 74 to 77. A similar distinction is made by Art. 61 in respect of the seller's remedies for the buyer's breach. The structure of these remedial provisions constitutes a significant distinction between the right to require performance and a claim for damages, including the duty to mitigate in Art. 77.[200] Finally, the drafting history of Art. 77 clearly shows that it does not concern the right to specific performance under Arts. 46 and 62.[201] As indicated above, at the Vienna Conference, several amendments were proposed in order to impose a duty to mitigate under Arts. 46 and 62 but all of them were defeated. For instance, the United States delegate proposed to amend Art. 46 so as to restrict the buyer's right to specific performance if he could "purchase substitute goods without substantial [unreasonable [202]] additional expense or inconvenience."[203] The proposal was rejected by the delegates,[204] following a long debate in which several representatives stated that the amendment would result in depriving the injured party of his contractual right to performance and would cause great uncertainty in international contracts.[205] After the rejection of the first amendment proposed by the US delegate, he tried to propose another which provided that a failure to mitigate would allow the party in breach not only to reduce any damages claim but also to claim " a corresponding modification or adjustment of any other remedy."[206] This proposal was also decisively rejected by a large majority of the delegates as it restricted the right to performance by imposing a duty to mitigate.[207] Accordingly, Art. 77, as some commentators suggest,[208] should not be extended to Art. 46 so as to restrict the buyer's right under Art. 46.[209]

PART THREE: Iranian and Shi'ah Law

1. INTRODUCTION

As far as the buyer's right to specific performance is concerned, Iranian Civil Code has addressed the issue under Art. 376. Under this provision, "[i]n the case of delay in delivery of the subject-matter of a sale …, the defaulting party shall be forced to make delivery". However, the Code has failed to answer the following questions:

There is also no reported judicial decision to deal with the above-mentioned questions.[210] Shi'ah jurists have also failed to discuss this remedy in detail. In Shi'ah jurisprudence, much emphasis has been placed instead on the circumstances where the contract can be terminated by one of the parties.[211]

What follows is an attempt to clarify the position of Iranian and Shi'ah law in respect of the remedy of specific performance, in general, and to determine the circumstances in which the buyer may be entitled to demand that the seller cure his defective performance.

2. SPECIFIC PERFORMANCE AS A GENERAL REMEDY?

With respect to Iranian law, Art. 376 of Civil Code gives the buyer a right to apply the court to enforce the seller who refuses to deliver the subject-matter of the contract. Art. 237 seems to be applied to the sale of goods case.[212] Under this provision "where a condition stipulated in a contract is a condition of performance or non-performance, the party who has undertaken the condition must abide by it, and if he fails to do so the other party may refer to the court and request that he should be compelled to honour the condition."[213] However, it is not quite clear whether or not the buyer has a general right to require the seller to perform what he has undertaken under the contract.

Nevertheless, a close consideration of the jurists' arguments in favour of the remedy shows that it has a wide scope and may be invoked in a wide variety of circumstances.[214] Generally, a buyer may be entitled to invoke the remedy where the seller fails to procure, produce or deliver the purchased goods or part of them (emtena' an al-taslim) or fails to perform an obligation to do a positive act such as delivery of goods at a particular port or on a date provided by the contract, or prepare and hand over the shipping documents, and, all other acts he may undertake to do or refrain to do under the contract (emtena' an al- wafa' bi al- shart -e- fe'l).[215]

The fundamental reason for this general rule is the Quranic verse "ufou bel u'qoud"[216] which orders Muslims to fulfil their contracts and a number of rewayat from the Prophet of Islam Muhammad [217] and Imam Ali and other Shi'ah Imams to the effect that contractual obligations must be respected unless performance amounts to violation of the Islamic code of conduct (i.e., it is a sin in Islam) or is otherwise against the law.[218]

Nevertheless, the question which remains unanswered is why the Islamic court should be obliged to interfere in favour of an aggrieved buyer by ordering the defaulting seller to perform his own part of the contract? And when the court does so, to what extent should it be required to accept the buyer's application for requiring performance?

3. REASONS JUSTIFYING THE COURT'S INTERVENTION

The question why the court should be required to give effect to the buyer's application for specific performance and when it does so, upon what rationale such a rule can be justified, has not been clearly examined by the jurists. However, some statements can be found in jurisprudential text books which may help one to identify the reasons justifying the rule. Two opposing approaches can be identified. The first supports giving the court wide power to interfere in favour of the aggrieved party by requiring the defaulting party to perform his contractual obligations and the second favours an approach which minimises the court's power to intervene in contractual relationships of the contracting parties.

3.1 First Approach

The first approach is justified on the basis of that as soon as a reciprocal contract is concluded the Islamic law-maker obliges the parties to fulfil their contractual obligations, if his conditions for validity of the contract are met.[219] No party to a contract is allowed to evade his contract, otherwise he will be acting contrary to the Islamic law (taklif share'i). Accordingly, they argue that the Muslim community should not allow violation of the sanctity of contract, and the Islamic judge must thus force the party in breach to perform.[220] Although this argument has been raised in the case of breach of shart -e- fe'l, it is a general argument applicable to all cases in which a contracting party is under an obligation to do some act in favour of the other party under a binding contract.[221]

3.2 Second Approach

In spite of strong support for the first approach on the part of a considerable number of jurists,[222] it has been criticised by some.[223] According to them, private contracts are the source of personal rights. Breach of these contracts is a violation of personal rights of the party in whose favour the obligation is undertaken.[224] It does not involve any of the duties owed by a man to God. Accordingly, there is no reason to justify the court's intervention. An aggrieved party, according to this approach, is left to the remedy of termination. However, the remedy of requiring performance is available in circumstances where breach of contract amounts to violation of not only the personal rights of the promisee but also the rights of the community, or obligations owed to God.[225] If a breach of contractual obligations of such a nature is committed an Islamic judge would be obliged to prohibit any breach of such a contract because this type of breach is more than a simple violation of the rights of a contracting party.[226] Although this approach has been taken by some jurists in the case of breach of shart -e- fe'l, it is, as the late Naeini, observed,[227] a general argument applicable to all contractual obligations under private contracts.

3.3 Suggested Approach

It is hard to accept the argument that the authorities such as the Quranic verse ufou bel u'qoud and the rewayat such as al- Mu'menoun enda shuroutehem are intended to impose on the parties to private contracts, in particular, to commercial contracts, a purely religious duty (taklif share'i mahd) to fulfil the contract, breach of which will amount to breach of a religious decree so that the party in breach will be regarded as guilty of violation of a duty owed by a man to God. Likewise, the second approach is unacceptable in its entirety, since termination is not always an adequate remedy. It is a not infrequent circumstance that the seller is a unique supplier, or is the only supplier able to procure and deliver the goods within the required time. The buyer sometimes requires the purchased goods for his business activities and is not able to procure them within the required time from another source. Accordingly, leaving the buyer to his remedy to terminate will sometimes cause him unreasonable harm.

It seems that the language of authorities such as the Quranic verse and rewayat already referred to is nothing but to confirm that contractual expectations must be respected if the contract is concluded according to the Islamic law-maker's requirements. By this recognition, the Islamic law-maker does in fact accept a validly concluded contract as a source of personal rights which entitles each party to demand that the other give effect to what he has undertaken.[228] It also follows that where one of the contracting parties has not received what he was entitled to obtain under the contract he should be compensated adequately. Accordingly, breach of contract will not always amount to violation of Islamic law in the strict sense that obliges the Islamic judge to interfere in order to protect the Islamic faith against violation. But since all contractual rights have been recognised by the Islamic law-maker, any breach of contract will result in violation of Islamic law in the sense of the necessity of respecting the contractual expectations. Hence, the court's interference is in order to protect a party who is aggrieved by the other party's violation.

On this interpretation, requiring performance will be one of the ways to compensate the aggrieved party but not the only way. It is left to the aggrieved party to elect his proper remedy. However, the buyer's option to elect between remedies is subject to the principle of la darar. Under this principle,[229] no detrimental religious rule is passed by the Islamic law-maker. Accordingly, if requiring performance will cause the party in breach loss greater than that inflicted on the victim of breach it will be a detrimental decree which is unenforceable under this principle. The Islamic order to respect contractual obligations does not mean that they must be performed under any circumstance but that contractual rights must be respected and a proper remedy should follow any breach. However, exercise of any particular remedy is subject to the restriction that it does not violate the cardinal principle of la darar.[230]

One of the natural consequence of the suggested approach is that the aggrieved buyer's right to demand specific performance is not an absolute right but is subject to the rights and interests of the seller in breach. Accordingly, if insisting on specific performance is unreasonable in the sense that it inflicts a greater loss on the seller in breach than the loss suffered by the buyer for non-performance, the cardinal principle of la darar comes into operation in favour of the seller in breach and, consequently, the buyer is left to other remedies. Accordingly, it seems to the writer that the remedy of specific performance has, in general, no priority over the remedy of termination but it is one of the remedies available for an aggrieved party. It may be resorted to in any case in which it does not cause the breaching party an unreasonable loss or inconvenience.

3.4 Different Consequences of the Three Approaches

Although no jurist has addressed, adoption of any one of the above-mentioned approaches produces different consequences. According to the first approach, in any case in which the seller fails to fulfil one of his contractual obligations the court has to give effect to the buyer's application for specific performance. The court has no power to refuse to accept the buyer's application and request him to terminate the contract and accept damages in lieu. An order requiring the seller to supply and deliver the subject of sale will be granted, so long as the compulsion of the seller to perform is possible. No matter whether or not the costs exceed considerably the contract price, or the buyer is able easily to obtain the goods from another source. Under this view, the court, in fact, protects Islamic laws against the seller's violation and thus is not allowed to ignore the infringement of Islamic instructions merely because of the increase of expense of supply of the goods.

In contrast, according to the second approach, the court is not given any power to interfere. The buyer is left to his remedy of termination. The only case in which he can apply for the court's aid is where the property in the purchased goods has passed to him. In such a situation, he can apply to the court for an order requiring the refusing seller to deliver the goods. However, the court's intervention is not justified on the basis of the buyer's right to require specific performance, but it is justified on account of ghasb; the seller is obliged to deliver the property to its real owner.

According to the writer's suggested view, the court is bound to interfere in favour of the personal rights of a buyer who is aggrieved by the seller's violation. However, its interference is subject to the principle of la darar. The court will give effect to the buyer's application for specific performance provided that it does not inflict on the seller loss greater than that the buyer may sustain for non-performance.[231]

4. RIGHT TO DEMAND CURE

Although Iranian Civil Code and Shi'ah jurisprudence have not addressed the question whether the buyer is entitled to demand that the seller cure his defective performance, close review of what the jurists have stated in justifying the injured party's right to apply for an order requiring performance supports the idea that the buyer may be entitled to such a remedy, whether by way of repair or delivery of replacement goods, because both remedies are particular forms of specific performance. In all cases, the court indeed orders the party in breach to perform specifically what he has undertaken under the contract, that is, to deliver goods conforming with the contract terms.

On this construction, the buyer's right to demand cure in the case of sale of unascertained goods is clear. Almost all jurists suggest that where the seller of unascertained goods fails to deliver conforming goods the buyer has an option to reject them and request the seller to deliver goods conforming with the contract conditions.[232] If the seller refuses to deliver conforming goods the buyer may be entitled to apply to the court for an order requiring the seller to deliver substitute goods. This is because where the buyer has lawfully rejected the non-conforming goods the case becomes one of non-performance in which the buyer may be entitled to require the seller to perform his contractual obligations.[233] Alternatively, the buyer should be given the right to accept the non-conforming delivery and require the seller to repair the defects if he wishes. However, the right to demand cure is subject to the general principle of la darar; it must not cause the seller unreasonable expense or unreasonable inconvenience, otherwise the buyer will be left to his right to terminate the contract and/or claim damages.

The buyer may also be entitled to request the seller to deliver substitute goods where the seller delivers the wrong quantity, or where some of the goods are not in accordance with the contract conditions. Accordingly, in a severable contract the buyer may be entitled to accept the conforming and reject the non-conforming part and request the seller to deliver instead of it conforming goods.

However, the position of the buyer's right to demand cure where the seller of specific goods fails to deliver conforming goods does not seem so clear. It might be argued that the buyer has no right to demand that the seller do so. Any request by the buyer in such cases can be rejected by the seller. The view can be explained on the basis that the subject of the seller's obligation is to deliver the specific goods which were supposed to possess particular characteristics. After the seller has delivered them to the buyer his obligation to deliver has been performed. No other contractual obligation under the contract remains to be fulfilled by the seller. The duty to remove the defect by repair or to take back the non-conforming and deliver substitute goods is an extra duty which cannot be inferred from the contract unless the parties have agreed expressly on such a right for the buyer. However, wherever the non-conformity causes the imposition of an undue detriment on the buyer he is entitled to reject them and terminate the contract, as described in the previous section.

This argument cannot be accepted in its entirety. It is true that in a contract for sale of specific goods the seller will not be under any duty to do a positive act in favour of the buyer when he has delivered the subject of sale to the buyer. However, in such a case, in particular, in the case where the seller has manufactured an item and sold it to the buyer according to his order, the seller gives a promise that he will produce and deliver goods conforming to the conditions on which they made their contract.[234] If it is proved that the goods do not correspond with the requirements provided under the contract the seller has in fact failed to perform his obligation to produce an item conforming to the contract requirements. Accordingly, he is required to perform his obligation under the principle of ufou bel u'qoud if he is able to repair the defects or put the item into operation by changing some part of it. However, the buyer cannot demand that the seller take back the defective goods and deliver substitute goods, since the seller's duties were only concerned with the specific goods and he has not undertaken any obligation as to the delivery of replacement goods.

5. REQUIREMENTS OF THE REMEDY

If the first approach is adopted the buyer's entitlement to this remedy is subject to the practicality of requiring the defaulting seller to perform his obligations,[235] whereas according to the suggested approach, the court will give effect to the buyer's application where it does not cause the seller an unreasonable expense or unreasonable inconvenience.[236] Where the buyer, without any unreasonable expense or unreasonable inconvenience, could procure the goods from another source, repair them himself or have them repaired by others he should not be entitled to demand cure. It is to be stressed that under the suggested approach it is the seller in breach who has to satisfy the court that specific performance would place him in a difficult position and impose on him hardship not the buyer who is given a right to have in specie what the seller has promised under the contract.

It is also suggested that the distinction made by the Convention (Art. 46(2) (3)) between the right to demand replacement goods and cure by repair is an appropriate rule. Thus, in the first case, he should be given such a right, as in the case of the right to terminate, only where the lack of conformity results in sufficiently serious consequences, having regard to the circumstances of the particular case, including the seller's offer to repair. The buyer should not be given a right to demand replacement goods for minor defects. This suggestion, not only is in line with the principle of la darar, but also would bring the remedy of demanding delivery of substitute goods close to that of termination. In practice, the former remedy would place the seller in more difficult situation in which termination will put him; the seller must take back the non-conforming goods and make a fresh tender. But in the second case, the buyer is entitled to demand repair of defects unless it is unreasonable having regard to all the circumstances.

CHAPTER THREE. Comparative Assessment

This study shows that English law gives little significance to the idea of compensating an injured buyer by coercing the defaulting seller to carry out what he promised. The Sale of Goods Act, placing specific performance under the heading of "Buyer's remedies", seems to recognise it as a right for the buyer who is aggrieved by the seller's breach. However, the express language of s. 52 of the Sale of Goods Act and the history of specific performance in English law shows that it is not treated as a matter of right for the aggrieved buyer seeking remedy, but is an equitable remedy whose exercise is left to the court's discretion. As already seen, specific performance of a sale contract may be granted, provided that the court thinks fit, where the contract is for sale of specific goods or, in the case of contract for sale of unascertained goods, they are already ascertained. Even in those cases, English courts do not generally order specific performance of a contract where damages can afford adequate remedy to an injured party. In any case where the buyer is seeking the remedy of specific performance he has to satisfy the court that damages are an inadequate remedy.[237] Leaving the remedy to the discretion of the court may cause some uncertainty; the buyer cannot predict under what circumstances the court would be satisfied to accept this remedy. For instance, in Societe Des Industries Metallurgiques S.A. v. The Bronx Engineering Co. Ltd.,[238] notwithstanding that the evidence showed that it would have taken the plaintiffs between nine to twelve months to obtain similar goods from an alternative source, the Court of Appeal was not satisfied that the case was a proper one for grant of specific performance, for the Court was of the view that the goods were of a type obtainable on the market in the ordinary course of business [239] and the additional loss suffered by the plaintiffs as the result of the delay would have been covered by an increased award of damages. In view of the fact that an order for specific performance under this system is only likely to be available in exceptional circumstances, it is even less likely that an order will be granted where the buyer has demanded that the seller cure his non-conforming performance by replacement or repair.

As far as the remedy of specific performance is concerned, the Convention substantially differs from English law. First, unlike English law, the Convention gives the buyer a general right to require the seller to perform what he has undertaken under the contract (Art. 46). Second, in contrast to English law, specific performance under the Convention has been treated as a right (Art. 45(1). Accordingly, where the buyer applies for it the court is bound to give a judgement ordering the seller to perform his obligation where the requisite requirements are satisfied (although Art. 28 of the Convention gives the national courts a discretion to depart from the Convention rules if under their national law they do not grant specific performance in similar contracts of sale not governed by the Convention). Third, as shown in light of the legislative history, the buyer, unlike in English law, is not required to show the court that damages are an inadequate remedy; he need not demonstrate inability to procure the contract goods elsewhere prior to obtaining specific performance. Likewise, unlike in English law, in the case of sale of unascertained goods, identification of the goods to the contract is not treated as a pre-requisite to a claim for the remedy of requiring performance under the Convention.

The remedy of specific performance under the Convention has a broad scope. The buyer may be entitled, subject to the restrictions provided by the Convention, to this remedy when the seller fails to procure or produce the goods or to deliver them, hand over any documents relating to them at the right place or date fixed in the contract (Arts. 31, 33 and 34). He may also apply to the court for this remedy where the seller refuses to deliver goods, hand over any documents relating to them (Art. 30), or where part of the purchased goods are missing or does not conform to the contract (Art. 51) and do all other acts necessary to fulfil the contract as originally agreed. Similarly, the Convention gives the buyer the right to apply to the court to enter a judgement ordering the seller to deliver substitute goods or repair the lack of conformity in accordance with Art. 46(2) and (3). When applying for replacement goods, what he is required to prove is that the seller's non-conforming delivery is serious enough to constitute a 'fundamental breach' (Art. 46(2). In contrast, when he applies for an order requiring the seller to repair the lack of conformity he should only show that his request is not unreasonable "having regard to all the circumstances" (Art. 46(3)). Although according to the wide language of this provision the buyer will have a general right to require the seller to cure any form of lack of conformity by way of repair, the buyer who contemplates resorting to these remedies obviously takes the risk that, if the matter comes to litigation, the court may hold that to require repair is unreasonable or that the lack of conformity is not sufficiently serious to constitute a fundamental breach. Accordingly, although specific performance under the Convention may be regarded as the logically prior remedy, in practice the buyer would likely prefer the certainty and simplicity of damages, unless repair or replacement is very difficult for the buyer to obtain otherwise.

In comparing Iranian-Shi'ah law with the two other systems, it seems that this system has close similarities to the Convention. As already seen, requiring the defaulting seller to perform his contractual obligations is a well-settled remedy under Iranian Civil Code and amongst Shi'ah jurists.

As in the Convention, in Iranian-Shi'ah law Iranian Civil Code and almost all jurists have recognised specific performance as a legal remedy. As shown before, apart from a few jurists who disagreed with giving the buyer a broad right to apply for specific performance, most of them hold that in any case in which the seller fails to fulfil one of his contractual obligations the buyer has a right to apply to the court for specific performance and the court is bound to give effect to his application. Under this interpretation, the court has no power to refuse to accept the buyer's application for specific performance and request him to terminate the contract and/or accept damages in lieu. Under this view, an order requiring the seller to supply and deliver the subject of sale will be granted unless requiring the seller to perform is impossible. No matter whether or not the costs considerably exceed the contract price, or whether or not the buyer is able easily to obtain the goods from another source. Likewise, although the jurists have not expressly addressed the issue, it seems that their interpretation does not distinguish between minor and substantial breaches where the buyer rejects the non-conforming goods and demands that the seller deliver conforming replacement. The buyer may be entitled, under this view, to demand that the seller deliver replacement goods even if the seller's non-conforming delivery does not amount to a substantial breach. According to this view, the court, in fact, protects religious rules against the seller's violation and thus is not allowed to ignore the infringement of Islamic instructions merely because supply of the goods would considerably exceed the contract price.

On this interpretation, specific performance is a broad remedy and may cover cases where the buyer is not entitled to obtain it under the Convention. Under this approach, as long as the seller can be compelled to perform, the court has to give effect to the buyer's application. Since Iranian Civil Code as well as the jurists have not ascertained the degree of impossibility of performance, one may conclude that the court, according to them, should give effect to the buyer's application unless the performance of the contract becomes impossible. Moreover, this view seems to suggest that the buyer may be entitled to apply for specific performance for any lack of conformity. Whereas, under the Convention, in giving effect to the buyer's application for specific performance, the court should look at the circumstances of each case to ascertain whether or not the buyer's request is reasonable.[240] Likewise, under the Convention the buyer will not be entitled to demand substitute goods where the lack of conformity does not result in a fundamental breach of contract.

However, by introducing a new reading of the main authorities relied on for this purpose, it was suggested that the above interpretation cannot be accepted in its entirety, at least in Shi'ah law. Under this suggestion, specific performance, contrary to the few jurists who disagreed with it, should be regarded as a legal remedy in this legal system but not as an absolute remedy applicable in every circumstance, as most jurists seem to suggest. Likewise, the remedy of specific performance is not provided in this system only to preserve the pure religious decrees. It is set forth to protect the aggrieved party's legitimate expectations under the contract. Accordingly, it is submitted that giving the buyer the right to obtain specific performance should be assessed according to the degree of losses and hardship caused to any party by giving or refusing specific performance. Under this suggestion, where insisting on specific performance is unreasonable in the sense that it inflicts a greater loss on the seller in breach than the loss suffered by the buyer for non-performance the court should have power to refuse to accept the buyer's application for performance and leave him to his remedy of terminating the contract and/or claiming for damages.[241] The suggestion can be supported by the principle of la darar. The Islamic order to respect contractual obligations does not mean that they must be performed specifically under any conditions. It is subject to the restriction that it does not violate the cardinal principle of la darar. On this interpretation, specific performance has, in general, no priority over the remedy of termination, as most jurists seem to suggest, but is one of the remedies available for a buyer who is aggrieved by the seller's breach. Accordingly, the court in any case should look at all the circumstances, in particular any hardship which would be caused to both parties by giving or refusing specific performance, for the purpose of implementation of justice. For this purpose, it is the seller in breach who has to satisfy the court that specific performance would place him in a difficult position and impose on him hardship not the buyer who is given a right to have in specie what the seller has promised under the contract.

Having accepted that the buyer has a right to require the seller to perform what he has undertaken under the contract, it is suggested that the Convention provisions giving the buyer a right to require the seller to cure his non-conforming delivery by delivery of substitute goods and/or repair are consistent with general principles and the authorities authorising the buyer to obtain specific performance. However, it is suggested that the buyer's right to demand cure should be analysed on the principle described above. Thus, the buyer's demand to cure by the seller should not be accepted where it causes the seller unreasonable expense or unreasonable inconvenience. In such cases, the buyer is to be left to his right to terminate the contract and/or claim for damages. Similarly, the buyer should not be given a right to demand delivery of replacement goods where the contract was for sale of specific goods, although he may be entitled to demand cure by repair. Demanding delivery of substitute goods should be available only where the contract is for the sale of unascertained goods. Likewise, it was suggested that in giving the buyer a right to demand cure, a distinction should be made between the right to demand replacement goods and to demand cure by repair. The right to demand substitute goods should be given only where the lack of conformity results in sufficiently serious consequences. But the right to demand cure by repair is to be available unless it is unreasonable having regard to all the circumstances.

Although on the suggested interpretation the circumstances in which a buyer may be entitled to apply for specific performance are considerably reduced, there are still important differences between Shi'ah and English law. Under this suggestion, the buyer is not required, as he is under English law, to satisfy the court that damages are an inadequate remedy for him or that the subject of sale is unique which cannot be obtained from another source. What he has to show is that the seller has failed to perform his obligations under the contract. It is the seller's duty to show that the contract goods are such that alternatives can be obtained from another source, and that requiring him to procure and deliver them under the contract would place him in a position worse than the buyer would be placed if specific performance is not granted. Likewise, unlike in English law, in Shi'ah law where the criterion, as described above, is met the court has no discretion; it has to enter a judgement for specific performance.

Similarly, although this suggestion, as described above, shows a close similarity to the Convention in a number of aspects, it seems that they differ in that, while under the Convention delivery of substitute goods will be available for the buyer only where the lack of conformity constitutes a fundamental breach of contract, under Shi'ah law the buyer may be given a right to demand replacement goods where the lack of conformity is, as in the case of termination,[242] such that it is not customarily unreasonable for him having regard to all the circumstances including the possibility of repair by the seller.

CONCLUSION

BIBLIOGRAPHY

*- This essay origins in my PhD project performed during 1994-1998 at the Department of Law, Sheffield University, Sheffield-England. The author would like to thank Mr. Robert Bradgate, who helped me, as supervisor,.Professor John Adams and Professor Michael Bridge, as examiners, by their valuable comments, when fulfilling my PhD project.

**- LLB (University of Tehran), LLM (University of Shahid Beheshti, Tehran-Iran, and, Sheffield University, Sheffield-England) and PhD (Sheffield University, Sheffield-England). Senior lecturer at the Department of Law, Faculty of Law, University of Shahid Beheshti, Tehran-Iran.

1. To complete the picture, the other remedies available for the buyer who is aggrieved by seller's non-conforming delivery are extensively examined under two separate essays titled: "Buyer's Right to Withholding Performance: A Comparative Study under English Law, the Convention on Contracts for the International Sale of Goods 1980, Iranian and under Iranian and Shi'ah law" and "Buyer's Right to Claim Monetary Relief: A Comparative Study under English Law, the Convention on Contracts for the International Sale of Goods 1980, Iranian and under Iranian and Shi'ah law"

2. For a detailed discussion of the history of Iranian law and its relation with Shi'ah law see, Owsia, P., (1994) at 25 and seq.

3. Principle 167. See also: principles 72 and 91.

4. See also, Principles 61 and 170. The rule of principle 167 has also been repeated and put into practice in both Iranian Civil Procedure Act 1379 H.S./ 2000 (Art. 3) and Iranian Criminal Procedure Act 1377 H.S./ 1999 (Art. 214).

5. See also, Art. 3 of Iranian Civil Procedure Act 1379 H.S./ 2000 and Art. 214 of Iranian Criminal Procedure Act 1377 H.S./ 1999.

6. As a matter of terminology two expressions are used here interchangeably: shari'ah and feqh. However, they are to be distinguished from each other. Feqh is more closer than shari'ah to the concept of 'law' in English. The former, in spite of having a narrower ambit than shari'ah, covers a much broader area than law stricto senso. A substantial part of feqh, however, correlates to the present-day concept of the law. A further term used here is faqih. The term 'faqih, sing.; fuqaha, pl' (sometimes mujtahed sing.; mujtahedin, pl.) is used to refer to a scholar who is versed in feqh to infer detailed rules from the sources concerned. He is a religious jurist, and is required to be pious and observant. For the convenience, in this research the term feqh is translated into 'jurisprudence' with reference to the overall context of shari'ah and with stress on the jurisprudential or theological aspect of the law and faqih is translated to 'jurist' with reference to the essential religious requirements the term contains. For detail discussion of these terms, see, Fyzee, Asaf, A. A., (1974) at 16-18, 23; Badr, G. M., (1978) at 188-189; A'mid Zanjani, A. A., (1993) at 130-131; Mallat, C., (1993) at 2-3; Owsia, P., (1994) at 17; Jannati, M. E., (1372 H.S.) at 80-83

7. See also, the Iranian Constitution, Principles 4, 61, 72 and 170.

8. For a detailed discussion of the issue see, Urduni, A. H. Y., (1372 H.S.) at 184-210.

9. In this respect see, Urduni, A. H. Y., (1372 H.S.) at 201-202; Al- Balagh Foundation, (1992) at 95-99; Owsia, P., (1994) at 18-19; Gurgi, A., (1997) at 45-46.

10. See also, A'mid Zanjani, A. A., (1993) at 134. For a detailed discussion of the authenticity of the Sunnah of Shi'ah Imams as a source of Islamic law, see, Tabatabaei, S. M. H., (1995) at 95; Jannati, M. E, (1370 HS) at 85 and seq.

11. There are five major Islamic 'schools' today four of which are orthodox Sunni and the fifth is Shi'ah. The four major Sunni schools are the Hanafi, founded by Abu Hanifah (d. 150/767); the Maliki, founded by Malik ibn Anas (d. 180/796); the Shafei, founded by ibn Idris shafei (d. 204/820); and the Hanbali, founded by Ahmad ibn al-Muhammad ibn Hanbal (d. 240/855). The Shi'ah school has a number sub-systems the major branch of it is the Ithna Ashari ( literally Twelver) Shi'ah which is the official religion in Iran (see the Principle 12 of the Iranian Constitution 1979). See in this respect Owsia, P., (1994) at 17-20. For a detailed information of the emergence of Sunni schools see, Muslehuddin, M., at 67 and seq.; Fyzee, Asaf A. A, (1974) at 32 and seq.

12. Jannati, M. E., (1372 H.S.) at 89; Gurgi, A., (1997) at 113.

13. Jannati, M. E., (1372 H.S.) at 149; Gurgi, A., (1997) at 124 and seq., particularly, at 136.

14. For detailed information about the history of formation and development of Shi'ah jurisprudence see, Owsia, P., (1994) at 22 and seq.; Shahabi, M., (1372 H.S.).) vols., 1, 2 and 3; Jannati, M. E, (1372 HS); Gurgy, A., (1997).

15. It is to be noted that Islamic feqh is divided into two portions: usoul and furou'. Usoul literally means the 'roots' or 'foundations' of the law, while 'furou' literally means 'branches' or 'applications', of the law. The science of usoul deals with the sources of the law and the principles of interpretation, while the science of furou' deals with ahkam, pl. of hukm, (the particular injunctions, that is, the law as it is actually applicable in the courts). See also, Mutahhari, M., (1361 H.S.) at 8 and seq.; Fyzee, Asaf A. A., (1974) at 23. For detailed information about the history of formation and development of E'lm al- Usoul in Shi'ah feqh see, Gurgy, A., (1997) at 299 and seq.

16. See, e.g., Mutahhari, M., (1361 H.S.) at 7; Jannati, M. E., (1372 H.S.) at 33. The same view is true as to Sunni law. See in this respect, Coulson, N. J., (1964) at 1-2 and 75; Muslehuddin, M., at 55 and seq.; Anderson, J. N. D., (1959) at 17.

17. This is based on a well-accepted theological belief that human community is not able independently to make the law since he cannot realise the masaleh (interests) and mafased (ugliness) of his conduct and behaviour and to find out how they may affect its life in the other world so as to make the proper law in any case. In this respect, he has to be guided and assisted by who has divine knowledge and is able precisely to realise what is in favour of man and his community and what may be against him in the next world. Shi'ah school holds, as a matter of theological belief, that God and those who are given divine knowledge are the only persons who are able to do this. On this theological belief, legislation should be made by God directly or at least by those persons who are given such a power. In Shi'ah belief those are the Prophet and Twelve Imams. On this view, any legal opinion should be based on a specific or at least a general approval of God or the Prophet and Imams. See in this respect, Ezzati, A., (1976), chapter 16; Daftar Hamkari Huzah wa Daneshgah, (1368 H.S.) at 296 and seq. in which the question was examined in detail in view of Shi'ah scholars. Shi'ah jurisprudence is based on such a theological belief. This is the reason why in any case the jurists make efforts to base their judgements on at least one explicit or implicit approval from God and his appointees.

18. For detailed information about the meaning of "Ijtehad" and its English equivalent see, Weiss, B., (1978) 199, particularly, at 200-201; Ezzati, A., (1976) chapter 12. See Also, Jannati, M. E., (1372 H.S.) at 1 and seq.

19. See also, Fyzee, Asaf A. A., (1974) at 20; Owsia, P. (1994) at 68. It is to be noted that although theologically the words of God (Quran) and the Sunnah of the Prophet and Imams are considered the law itself by Shi'ah Muslims, they are jurisprudentially referred to as the 'source of law' rather than the law itself. This is because they are the scattered texts from which the law is not entirely self-evident. They do not, as a rule, state the law in a strictly legal sense, as a code or similar instrument which states the law. They do, however, contain the law. Since the law is buried within the (legally) imprecise and sometimes ambiguous language of the scattered texts, it is said to be extracted from the texts, and it is for this reason that the texts are to be considered sources of the law rather than the law itself.

20. For a detailed discussion see, Al- Balagh Foundation, (1992), at 83-88; Tabatabaei, S. M. H., (1995) at 94; Jannati, M. E., (1370 H.S.) at 77 and seq.

21. Great differences exist between Islam believers as to the number of the Quranic verses, ranging between 6000, 6204, 6214, 6219, 6225, 6323 and 6660. However, these differences are for the reason of procedural rules of reading not for the contents. See in this respect, Mutahhari, M., (1361 H.S.) at 12; Gurgy, A., (1997) at 17.

22. See, Shahabi, M., (11369 H.S.) vol. 2 at 15 and seq. (in which he explains briefly all the normative verses).

23. See in this respect, Khurasani, (1364 HQ.), vol. 2 at 58 and seq.

24. The term "Sunnah" has different meanings . But in this study it is use in the sense which the jurists used in e'lm al- usoul. For a detailed discussion see, Jannati, M. E., (1370 H.S.) at 73 and seq.

25. Taqrir means keeping silent vis-à-vis the actions and deeds of others, so much it signifies the consent and agreement of the M'soum (infallible Imam or Prophet) with them. See Mutahhari, M., (1361 H.S.) at 14; Jannati, M. E., (1370 H.S.) at 75 and 155 and seq.

26. See Jannati, M. E., (1370 H.S.) at 162. It is to be mentioned that the word "Sunnah" is technically to be distinguished from the terms such as "hadith", etc. The latter is the story of a particular occurrence, while the former, the rule of law deduced from it, is the 'practice' of the Prophet or Imam, that is, their 'model behaviour'. It is to be noted that when referring to the means of reporting the "Sunnah" (tradition), the expression "rewayah", pl. "rewayat", will be used throughout this study.

27. For a detailed discussion on the history of gathering and classification of Sunnah, see Jannati, M. E, (1370 H.S.) at 127 and seq. Likewise, for a detailed discussion of the Prophet's Sunnah in Shi 'ah's view, see Al- Balagh Foundation, (1992) at 83 and seq.

28. See in this respect, Tabatabaei, S. M. H., (1995) at 95; Jannati, M. E, (1370 HS) at 85 and seq.

29. In order to verify the reliability of the rewayat any jurist must first make sure that they are the words, actions or approvals of the Prophet or Imams. For this purpose, Shi'ah (as well as Sunni) jurists have made great efforts to verify the reliability of the transmitters of the rewayat and thereby determined the various degree of authenticity of the rewayat by establishing two interrelated disciplines: E'lm al- Rejal (The Science of Persons) which concerns biographical notations on the religious creditability of the transmitters, and E'lm al- Derayah (The Science of Considered Appraisal) which classifies the rewayat into different categories of authority according to the chain(s) of transmitters. Basing on the creditability of the transmitters, and the complete or incomplete chains of transmitters the narrated rewayat are divided into different categories. See in this respect, Jannati, M. E, (1370 H.S.) at 114-115, 146, 164 and seq.

30. A considerable authoritative sources have over centuries undertaken to gather and classify these statements citing the words, actions and approvals of the Prophet and His Twelve Successors. These are in two sets. The main and the primary set consists of four, collectively known as The Four Books (Kutub al- Arba'ah), produced over a century and a half in the fourth to mid fifth/tenth to mid eleventh century; while the secondary set, consisting of a further four collections, is of later periods spread over almost two centuries, from the eleventh to early fourteenth/seventeenth to late nineteenth centuries. The first set are as follows: Babeway, Muhammad ibn Ali ibn (Shaykh Sadouq), Man la Yadur al- Faqih; Kulayni, Muhammad ibn Yaqub, al- Kafi; Tousi, Muhammad ibn Hassan, Tahdhib al- Ahkam, and, al- Istebsar; Ameli, Shaykh Hurr, Wasael al- Shi'ah; Fayz Kashani, Muhsen, al- Wafi; Nouri Tabarasi, Mirza Hussein, Mustadrak al- Wasael.

31. See also, Jannati, M. E., (1370 H.S.) at 182.

32. Various definitions are offered to describe the term ijma'. See in this respect, Ansari, M., (1991) vol. 1 at 79-80; Jannati, M. E., (1370 H.S.) at 182-184; ; Muslehuddin, M., at 146-147.

33. However, Sunni scholars have relied on a number of the Quranic verses and rewayat from the Prophet to demonstrate that Ijma' should be followed. For a detailed discussion on the reasons for validity of Ijma' in Sunni view, see, Jannati, M. E., (1370 H.S.) at 190-197; Owsia, P., (1994) at 71, Coulson, N. J., (1964) at 77. For a detailed discussion of the history of emergence of ijma' as a source of law see, Jannati, M. E, (1370 H.S.) at 185-187.

34. See also, Ansari, M., (1991) vol. 1 at 80; Jannati, M. E., (1370 H.S.) at 188 and 199.

35. In order to show how the consensus is capable of indicating the view of the Prophet or Imam various methods are rendered. See in this respect, Jannati, M. E., (1370 H.S.) at 199 and seq.

36. See in this respect, Mutahhari, M., (1361 H.S.) at 16.

37. To know the other theories see, Jannati, M. E., (1370 H.S.) at 210-211.

38. This theory was suggested by some eminent Shi'ah jurists in the early century of development of Shi'ah feqh such as, Shaykh Mufid, Tousi and Sayyed Murtada (as cited in Jannati, M. E., (1370 H.S.) at 202).

39. This theory is attributed to Shaykh Tousi in his leading book, U'ddah al- Usoul (see, Jannati, M. E., (1370 H.S.) at 203).

40. This theory was offered by Mirza Abulqasem Gumi (see Jannati, M. E., (1370 H.S.) at 207). See also, Ansari, M., (1991) vol. 1 at 83 and seq.; Khurasani, M. K., (1364 H.Q.) 16 vol. 2 at 68 and seq.

41. Owsia, P. (1994) at 72.

42. Ibid. See also, Ansari, M. (1991) vol. 1 at 79. For detailed information see, Khurasani, (1364 H.Q.) vol. 2 at 74.

43. For more criticisms on treatment of Ijma' as a source of law, see Jannati, M. E., (1370 H.S.) 209-210 in which the author himself after rejecting the various methods concludes that Ijma' cannot be regarded as a separate source of law at all (see ibid., at 213).

44. See in this respect, Ansari, M., (1991) vol. 1 at 105 and seq.; Khurasani, M. K., (1364 H.Q.) vol. 2 at 77 and seq. However, some eminent Shi'ah jurists have recognised it as a separate source of law. See Makki, Jamal al- Din Muhammad ibn (Shahid Awwal), Dhekra al- Shi'ah fi al- Ahkam al- Shari'ah, as cited in Jannati, M. E., (1370 H.S.) at 116.

45. For a detailed analysis of the issue, see Jannati, M. E. (1370 H.S.) at 224 and seq.; Ezzati, A., (1375 HS) at 134 and seq.

46. Jannati, M. E. (1370 H.S.) at 224.

47. It should be mentioned that in the course of evolution of Islamic schools of thought two basic approaches crystallised and have subsequently settled throughout the history of Islamic law: the so-called Traditionalist and Rationalist trends. Emergence of these two opposing approaches appeared between both Sunni and Shi'ah scholars in the early centuries of formation of Islamic law. In the history of Shi'ah law the Traditionalist approach (which is called "hadithi" and "akhbari") appeared in two different eras. The first was the early century of formation of Shi'ah feqh (third/tenth century) and the second commenced from the early eleventh/ seventeenth century. These two trends are derived from respective views on the sources of the law. Next to the Quran as the foremost source, Traditionalist approach confined the jurist almost entirely to tradition as a source of law, while the Rationalist approach supplements these sources with certain rational (a'qli) Principles. The supporters of the former approach also went further and maintained that the only source should be tradition and no value had to be given to the other sources, that is, the Quran and Ijma' (for detailed information see, Gurgy, A., (1997) at 236-239, 245). However, in both periods due to the heavy pressure on the part of the Rationalist jurists (who are called "usouliyin" or "mujtahidin") they were gradually disappeared. For a detail discussion of the emergence of akhbarism approach in the history of Shi'ah law and its gradual decline see, Jannati, M. E., (1372 H.S.) at 307 and seq. See also Mallat, C., (1993) at 28 and seq.

48. In any case in which a reliable textual authority exists a'ql can only be relied on to support it. Whatever is the content of the nass it should be followed. However, where the generality (u'moum) or unqualified (itlaq) of a rewayat seems contrary to certain commands of a'ql it will be qualified and sometimes cease to be applied (see in this respect, Shaykh Mufid, Tashih al- I'teqad, at 34, 35, as cited in Gurgy, A., (1997) at 237; see also Ansari, M., (1991) vol. 1 at 18). To that extent, a'ql will be employed as a tool to find out the real intention of a the Prophet or Imam as narrated by hadith.

49. See in this respect, Jannati, M. E., (1370 H.S.) at 238; Weiss, B., (1978) at 211.

50. See, e.g., Allamah Helli, Tahdhib al- Usoul, at 6, and, Qumi, Mirza Abulqasem, Qawanin al- Usoul, at 257 (cited in Ezzati, A., (1375 H.S.) at 138, 141 respectively); Mutahhari, M., (1361 H.S.) at 38-40. For a detail discussion, see Jannati, M. E., (1370 H.S.) at 228 and seq., 238 and seq.

51. See, e.g., Mutahhari, M., (1361 H.S.) at 40; Jannati, M. E., (1370 H.S.) at 300-31. It is to be noted that in this case a jurist may face two types of religious rules. First are those rules provided for particular occasions, and second, are those announced as general rules. Accordingly, a difficult task is to distinguish these two rules, like obiter dicta and statement of law in English law. The method of tanqih al- manat would only work in respect of the second category. For a detail comparison between English and Shi'ah law approaches, see Owsia, P., (1994) at 111-112.

52. See, e.g., Ansari, M., (1991) vol. 1 at 335 (in respect of asl al- baraah (acquittal)); Khurasani, M. K., (1364 H.Q.) vol. 2 at 179 (in respect of "asl al- bara'ah), 185 (in respect of asl al- ihteyat) and 224 (in respect of asl al- takhyir (choice)).

53. This role of a'ql can be found in Mabhath al- Alfaz (Discourse on Words) of the e'lm al- usoul. See also, Owsia, P., (1994) at 73; Ezzati, A., (1375 H.S.) at 142. Most of the topics on Words (alfaz) cover different detailed rules of interpretation (for a detailed discussion of these topics, see Khurasani, M. K., (1364 H.Q.) vol. 1). These rules have been developed mainly to resolve problems of approach to the first two primary sources of the law, Quran and the tradition, and the relation within and between their perspective precepts. Treatment of the topics contained in this part of e'lm al- usoul and of interpretational technical devices is almost free from religious prejudices (Owsia, P., ibid.). Mention can be made, as examples, of qiyas mansous al- e'llah and qiyas al- ulaweyyeh (see Jannati, M. E., (1370 H.S.) at 298-299.

54. See, e.g., Mutahhari, M., (1361 H.S.) at 41-43 in which he mentions a number of technical examples (such as muqaddemah wajeb, trattub and ijtema' amr wa nahy).

55. To know of such a rigid caution, see Jannati, M. E., (1370 H.S.) at 249.

56. This is because it is commonly held that the only way to infer the law of Shari'ah is qat' (complete juristic certainty or certain knowledge) or through a zann (conjecture) provided that it is certified by an e'lmi (certain) authority. See in this respect, Ansari, M., (1991) vol. 1 at 1 and seq.; Khurasani, M. K., (1364 H.Q.) vol. 2 at 55 and seq. This rigid qualification, as will be seen in more detail, caused certain formal and supplementary sources unreliable in practice.

57. For instance, the late Shaykh Murtada Ansari, an eminent Shi'ah Rationalist jurist, says: "Yes, but fairly relying on a'ql to find out the philosophy of the existing rules (manatat al- ahkam) in order to extend the rules obtained thus to similar situations causes the jurist to err frequently in fact" (Ansari, M., (1991) vol. 1 at 20-21. See also, Mutahhari, M., (1361 H.S.) at 40; Jannati, M. E., (1370 H.S.) at 243, in which he says: "Any rational judgement which is influenced by personal, social emotional and habitual affairs has no legal value". It is perhaps for the above reasons why some contemporary jurists asserted that a'ql is a potential source for the law of Shari'ah and in practice no jurist requires it because of tradition! In other words, on their view, Shi'ah law has recognised a'ql as a potential source for inferring the law of Shari'ah but up to now no one was forced to refer it for inferring the law for the lack of textual authorities.

58. Technically, a number of terms are used by the jurists which need some clarification. These terms are "u'rf", "sirah al- mutasharre'ah (the continuos practice of those who abide by the religious law) which is sometimes called "sirah al- muslemin (the continuous practice of Muslims community) and bana' al- u'qala' (the continuos practice of the learned) which also is called sirah al- u'qala' (tradition of the learned). However, there is a slight divergence between the latter four usages. The first two expressions are used to refer to those practices formed by Muslim community, while the two others are employed to describe any common practice, whether formed within a non-Muslim community or both. For more information about the concept and different types of custom, see Jannati, M. E., (1370 H.S.) at 391 and seq.; Sadr, S. M. B., (1994) at 211-212.

59. One may suggest that factors such as ensaf (literally, equity) and adalat (justice) could be regarded, to some extent, as sources of law. As an example, in the leading textbook of Makasib, the late Ansari in a number of occasions relies on 'equity' to suggest an opinion which is apparently contrary to the results of rational analysis of the existing authorities. The same can be true as to "justice". As to the latter, see Mutahhari, M., (1409 HQ) at 14, 27; Mehrizi, M., (1997) at 184 (in which the author has made great efforts to identify some Shi'ah jurists who have relied on "justice" in some occasions to justify their judgements. However, since no jurist has addressed these possible sources in the methodology of jurisprudence, they are not examined here. Moreover, neither Ansari himself nor any other jurist has addressed what the term "ensaf" means and how it could be relied on as a separate source of law.

60. See, e.g., Jannati, M. E., (1370 H.S.) at 397, 408; Sadr, S. M. B., (1994) at 197-199; Mara'shi, S. M. H., (1994) at 101; Ma'rafat, M. H., (1994) at 106.

61. In this sense, custom, as the late Shahid Sadr points out, does not require to be approved by the Islamic-law maker (see, Sadr, S. M. B., (1994) at 197-198).

62. Jannati, M. E.,(1370 H.S.) at 405-406.

63. In this respect, see generally Shahabi, M., (1369) vol. 1 at 61-64.

64. Jannati, M. E.,(1370 H.S.) at 397, 408. See also Sadr, S. M. B., (1994) at 200.

65. See Sadr, S. M. B., (1994) at 200; Ma'rafat, M. H., (1994) at 69 and 106.

66. See, e.g., Mutahhari, M., (1361 H.S.) at 12; Jannati, M. E., (1370 H.S.) at 3.

67. As regards the forged rewayat see Jannati, M. E., (1370 H.S.) at 146 and seq.

68. See Jannati, M. E., (1370 H.S.) at 119-120. For detailed examples of the role of Sunnah, see ibid., at 120-121.

69. See, e.g., Khurasani, M. K., (1364 H.Q.) vol. 2 at 70 and seq.

70. Very few examples can be found in Shi'ah jurisprudence where the jurists have relied on the rule of tanqih al- manat. See, e.g., Mara'shi, S. M. H., (1994) at 86.

71. Various devices are also offered by Sunni scholars to modernise the Islamic legal system in accordance with the Sunni jurisprudence. See in this respect, Zaki Yamany, A., (1979) 205; Khadduri, M., (1979) 213; Fazlur R., (1979) 219.

72. See Nouuri Tabarasi, M. H., vol. 12, bab 15 at 230, hadith no. 13962, and, at 231 hadith no. 13965; Majlesi, M. B., vol. 71 at 204 bab 14 hadith 41, vol. 74 at 166 bab 7 hadith 2, vol. 97 at 7 bab 1 hadith 7 and at 23 bab 2 hadith 15.

73. See The Holy Quran, chapter 5 (Mae'dah), verse 1: "O ye who believe, perform all covenants".

74. In a famous statement the Prophet of Islam said: "All Muslims are obliged to perform their contractual obligations". See Ameli, H., vol. 15, bab 20 at 30, hadith 4.

75. See in this respect, Fayz, A., (1994) at 183-185. Such a construction has been accepted and applied in some cases. For example see, Haeri, S. M. K., (1994) at 104 (in which he cites from the late Ayatullah Kumpani). The late Kumpani holds that in any case where it is proved that a particular practice is accepted by a community it should be deemed as approved by the Islamic-law maker (see ibid.). Likewise, the Late Imam Khumayni has referred to this broad interpretation of u'rf (custom) under the question of Ijtehad and Taqlid (imitation of the qualified jurist) (see, Khumayni, S. R. M., Resalah al- Ijtehad wa al- Taqlid, at 120-130, particular, at 125, as cited in Fayz, A., (1994) at 184. The late Imam Khumayni has also relied on such a broad construction in the law of contracts. For example, in the case of the right to claim arsh and the right to terminate the contract on the basis of imtena' (repudiation) he has based both rights on this principle. (See in this respect, Khumayni, R. M., vol. 5, at 127, 128, 134 and 372). Likewise, a number of qawaed feqhiyah (general principles) and principal rules (qawaed usouli) are formulated by relying on this source, although as a supplement to the other formal sources. The late Shahid Sadr says that it is not required that a particular rational norm should have been actually employed by the Muslims community at the period of Ma'soum. It would be sufficient if it is proved that that particular norm was realisable then by the learned (u'qala). The implied approval is in fact concerned with the criterion of that norm rather than the extent to which it is actually applied at that time (see Sadr, S. M. B., (1994) at 210-211).

76. See generally, Ansari, M., (1991) vol. 1 at 1 and seq.; Khurasani, M. K., (1364 H.Q.) vol. 2 at 55 and seq.

77. It seems that this is perhaps the reason why some jurists in some occasions have tried to offer a new reading of the traditional sources. Two historical events can be presented as evidence. First, at the early century of formation and development of Shi'ah jurisprudence some eminent jurists suggested that any unanimous convergence of the views of all reputable jurists of a particular era on a given point of law should be treated as a binding rule. Second, a number of distinguished jurists such as Muhaqqeq Qumi -the writer of the leading text book "Qawanin", have tried to justify any conjectural authority as a source of law. This is in fact a step toward recognition of the inadequacy of the existing authentic rewayat to meet modern needs.

78. The theory of "closure of the door to certain legal knowledge" as a valid proof (dalil) is based on a number of premises. The first is that, in any case relating to the individuals and community, the Islamic-law maker has a real precept (hukm-e-waqei). The second, and by far the most significant, is that due to the absence of an infallible Imam in any case it is impossible to infer the real precept concerned through a certain authority. The third is that due to the existence of e'lm-e-ejmali (literally, general, or, unspecified knowledge) the mere absence of certain authority on the relevant precept will not excuse a Muslim from the real religious verdict (hukm-e-waqei share'i). The fourth, is that it is unreasonable to prefer doubtful authorities where there are anni authorities. Where these premises are proved a jurist would be able to resolve the problem by relying on zanni authorities, such as conjectural rational analysis and bana al- u'qala.. No jurist questions these premises. The only thing which is denied by most jurists is the inadequacy of the special zanni authorities, while, as shown in the text, the existing special authorities are not able to tackle all the needed issues. Accordingly, to that extent zann should be reliable in accordance with the theory of "Insedad", which is called "Insedad Saghir" (minor closure). However, some Shi'ah scholars have recently suggested that the door of certain knowledge to the religious law is entirely closed since no certain authority exist to validate the Sunnah which is frequently transmitted by kabar -e- wahed (single transmission). This is called 'Insedad kabir'. On this view, the only way to infer the religious precepts is to rely on zann. See Fayz, A., (1994) at 180 and seq.

79. Moreover, one of the main authorities for authenticity of the practical principles is bana al- u'qala.. This shows that the learned themselves do not attach to these principles an unqualified role. They will rely on such principles when there is no strong zann.

80. Some Shi'ah scholars have recently suggested that a jurist who is going to infer the law of Shari'ah by the process of ijtehad should not confine himself to those normative Quranic verses and tradition. In extracting the law of shari'ah careful attention, they suggest, should also be paid to the fundamental principle of "justice" along with other religious objectives for which the religion was sent. See in this respect, Hakimi, M. R., (1994) 107. Accordingly, the objectives of the religion as a whole would be taken into account in order to assess the merit and demerit of a particular legal rule formed in a legal system.

81. Mutahhari, M., (1361 H.S.) at 17; Jannati, M. E., (1370 H.S.) at 294 and seq. For a detailed discussion of qiyas (analogy) and certain supplemental principles, such as istehsan - seeking the best, or, juristic preference -, see Jannati, M. E., (1370 H.S.) at 309 and seq.; Muslehuddin, M., at 135 and seq.; Fyzee, Asaf A. A., (1974) at 21-22.

82. See also Owsia, P., (1994) at 74.

83. See also Gurgy, A., (1994) at 96.

84. In Shi'ah jurisprudence there can be found some cases in which some eminent jurists have relied on this technique in a broad sense. As an example, see a number of instances cited in Ma'rafat, M. H., (1994) at 90-91.

85. Long before an English author had identified a number of reasons why a buyer might want to seek specific performance of the contract (Treitel, G.H., (1966) 211. See also Secretariat Commentary, (1979) at 38.

86. Treitel, G. H., (1966) 211. It should be mentioned that where the subject of obligation is to pay a liquidated money such as price under a sale contract, such a reluctance does not apply. Here it is not a discretionary remedy. Where the beneficiary party applies for the decree the court will issue the decree ordering the refusing party to pay the agreed sum. See for example, s. 49 of the Sale of Goods Act 1979 in respect of the seller's right to take an action for price. See also Ogus, A., in Harris, D., and Tallon, D., (1989) 243 at 251.

87. See in this respect, Arts. 237, 376 and 395 of Iranian Civil Code (herein after, I.C.C.).

88. See generally, Sayouri, J. M. (Fadel Meqdad), (1343 H.S.) vol. 1 at 71; Ardabili, A. (Muqaddas Ardabili), at 462; Naraqi, A., (1408) at 44; Najafi, M. H., (1981) vol. 23 at 145 and 210; Najafi, M. H., (1981) vol. 24 at 339; Ansari, M. (1375 H.Q.) at 284-285 and 312; Khalkhali, S. M. K., & Rashti, M. H., (1407 H. Q.) vol. 2 at 542; Gharavi Isfahani, M. H., (1408 H. Q.) vol. 2 at 158-159 and 199; Yazdi, S. M. K., (1378 H.Q) vol. 2 at 125 and seq., in particular, 128; Najafi, M., and, Naeini, M. H., (1358 H.Q.) vol. 2 at 131 and seq.; Iravani, A., (1379 H.Q) vol. 2 at 67; Bujnourdi, M. H., (1389 H.Q) vol. 3 at 268 and 367 (in which he observes: "No jurist has denied the necessity of fulfilling "shart" in terms of religious duty.").; Touhidi, M. A., and Khouei, S. A. (1368 H.S.) vol. 7 at 366 and seq. and 592-593; Khumayni, S. R. M., vol. 5 at 220 and 372; Tabrizi, J., (1412 H. Q.) at 435 and seq.

89. See in this respect, Cheshire, Fifoot and Furmston, (1996) at 607 (in which the authors explain that "this was probably because common law courts' judgments were enforced by distraint on the defendant's goods which ultimately produced a money sum"). This reference, however, does not explain the reason why the common law courts' judgments were only introduced in the form of sum of money. This has its origin in the process of development of contractual claims in English law.

90. Harris, D., (1988) at 132; Zweigert, K.; Kotz, H, (1987) vol. 2 at 169. It is to be noted that during the nineteenth century there was legislation which enabled the common law courts to order specific performance and the Court of Chancery to award damages (see, e.g., Mercantile Law Amendment Act 1856; Chancery Amendment Act 1858), and eventually since the Judicature Acts 1873-75 all remedies available for equity courts are applicable in all divisions of the High Court. See in this respect, Cheshire, Fifoot and Furmston, (1996) at 607

91. Cheshire Fifoot & Furmston, (1996) at 644; Guest, A. G., (1984) at 516; Ogus, A., in; Ogus, A., in Harris, D., and Tallon, D., (1989) at 249.

92. See in this respect, Bishop, W., (1985) at 305; Harris, D., (1988) at 134; Furmston, M., (1995) at 158.

93. Section 52 (1): "In any action for breach of contract to deliver specific or ascertained goods the court may, if it thinks fit, on the plaintiff's application, by its judgement or decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages."

94. See Guest, A. G., et al, (1997) Para. 1-113.

95. Ibid., Para. 1-114. In Howell v. Coupland [1876] 1 Q.B.D. 258 (the case was concerned with the question of frustration of contract), it was stated that the authorities on such a matter are confused. See also, Treitel, G. H., (1966) at 218.

96. Howell v. Coupland [1876] 1 Q.B.D. 258. In this case Mellish L.J. at 262 called the potatoes "specific things". However, Treitel criticised that they were not "specific goods" within the definition given in s. 61 (1) of the Sale of Goods Act 1979 ("identified and agreed upon at the time a contract of sale is made") (Treitel, G. H., (1995) at 831 fn. 66).

97. [1863] 3 B. & S. 826.

98. [1900] 1 Q. B. 513. The case was in fact concerned with a claim on the part of the buyer that the contract was a sale by description and as a result of lack of conformity of the article sold with the seller's statements the buyer had a right to reject. The seller argued that s. 13 of the Sale of Goods Act applies only to the case of a sale of unascertained goods (see p. 515). However, the court, rejecting the seller's argument, held that although the most usual application of s. 13 was no doubt to the case of unascertained goods, it must also be applied to cases such as the case in question where there was no identification otherwise than by description (at 516).

99. [1927] 1 Ch. 606.

100. Treitel, G. H., (1966) at 218.

101. Atiyah, P. S. & Adams, J., (1995) at 50.

102. For, in order of application of s. 18 rule 1 of the Act, the goods must be in a deliverable state at the time of the contract, while a contract to sell future goods as such can never be "unconditional" (see Guest, A. G., et al, (1997) Para. 1-113.

103. Ibid.

104. [1927] 1 Ch. 606 at 630.

105. See also Guest, A. G., et al, (1997) Para. 1-116.

106. [1918] 119 L.T. 287 at 290. It is worth noting that there is a difference between the view of Atkin L.J. in In re Wait and that of Sankey J. in Thames Sack and Bag in that the first view requires identification "in accordance with the agreement" after the conclusion of the contract, while on the second view any process of identification will be sufficient for this purpose, even if the agreement contained no provisions to that end, and even if the process of identification was not in accordance with such provisions on the matter as the agreement did contain.

107. [1926] 31 Com. Cas. 172 at 179.

108. Wait & James v. Midland Bank [1926] 31 Com. Cas. 172 at 178-179. The same rules are applied to the case of passing of property by the new s. 18 rule 5 (3) inserted by the Sale of Goods Act (Amendment) 1995.

109. For instance, in Thames Sack and Bag Co. Ltd. v. Knowles & Co. Ltd. which was concerned with the sale of ten bales of Hessian bags, and the invoice sent by the seller after the making of the contract referred to ten out of a particular parcel of 45 bags, the judge held that this was insufficient ascertainment of the goods for the purposes of s. 52 ([1918] 119 L.T. 287). Accordingly, an inappropriate part of a larger, ascertained bulk cannot be "ascertained" for the purposes of section 52.

110. For instance, where the subject of sale is growing crops or natural products, it is possible that ascertainmnet takes place at the same time when they are appropriated for the purpose of passing the property (see Bridge, M., (1997) at 532-533).

111. Ontario Law Reform Commission, (1979) vol. 2 at 438.

112. It seems that there is no significant difference between the contracts for goods which are wholly unascertained and the contracts for unascertained goods from a designated source. In the latter case which is called quasi-specific goods (Goode, R. M., (1995) at 252; Bridge, M., (1988) at 41) the goods remain in principle unascertained since it cannot be said of any particular part of a large bulk whether it has been identified and agreed upon at the time of contract (see Bridge, M., ibid.). A slight difference, however, may appear where the particular bulk is used by the seller and reduced to or less than the contract quantity the remaining goods will be taken as appropriated to the contract (as in Wait & James v. Midland Bank [1926] 31 Com. Cas. 172 at 178-179; see also, the new section 18 rule 5 inserted by the Sale of Goods (Amendment) Act 1995).

113. See in this respect, Bridge, M., (1988) at 532.

114. See in this respect, Bridge, M., (1988) at 532.

115. [1927] 1 Ch. 606.

116. Ibid., at 630.

117. [1974] 1 All E. R. 954.

118. Atkin L.J.'s view has also been objected on the ground that he offered no explanation why the parliament should have wished to reduce the ambit of the remedy of specific performance, and the history of the section does not support the thesis. (Ontario law Reform Commission, (1979) vol. 2 at 438-439).

119. Such as In re Wait [1927] 1 Ch. 606; Societe des Industries Metallurgiques S.A. v. Bronx Engineering Co. Ltd [1975] 1 Lloyd's Rep. 465 at 468, 470.

120. See Macdonald. E., (1987) at 251. See also Berryman, J., (1985) at 319.

121. Atiyah, P. S. & Adams, J., (1995) at 508.

122. See also Ontario Law reform Commission, (1979) vol. 2 at 438.

123. See, e.g., in an appeal to the House of Lords of a Scottish case Stewart v. Kennedy [1890], 15 App. Cas. 75 at 102, Lord Watson observed: "I do not think that upon this matter any assistance can be derived from English decisions, because the laws of two countries regard the right to specific performance from different standpoints. In England the only legal right arising from a breach of contract is a claim for damages; specific performance is not matter of legal right, but a purely equitable remedy, which the Court can withhold when there are sufficient reasons of conscience or expediency against it. ..." See also Cheshire Fifoot & Furmston, (1996) at 644; Ogus, A. in Harris, D. and Tallon D., (1989) at 250; Priest A. J. (1984) 927.

124. See, e.g., Shell UK Ltd. v. Lostock Garages Ltd. [1976] 1 W.L.R. 1187 at 1202. See also Cheshire Fifoot & Furmston, (1996) at 645; Guest, A. G., (1984) at 518; Treitel, G. H., (1988) Para. 64; Priest A. J., (1984) at 927.

125. See also, Stickney v. Keeble [1915] A.C. 386 at 419.

126. The restriction has been justified on the grounds of policy: that it would be improper to make one man serve or employ another against his will (see Guest, A. G., (1984) at 519).

127. See, e.g., Ryan v Mutual Tontine Westminster Chamber Association [1893] 1 Ch. 116, where the court refused to order specific performance of a contract to provide pottering services for a flat. See generally, Burrows, A. S., (1984) 102; Treitel, G. H., (1995) at 930; Harris, D., (1988) at 138, 139; Ogus, A., in Harris, D., Tallon, D., (1989) at 250 Zweigert, K.; Kotz, H., (1987) vol. 2 at 171-172.

128. This rule plays a substantial role in the case of specific performance under general law of contract (see in this respect, Ogus, A., in Harris, D., Tallon, D., (1989) at 243 at 254), although the rule has been described as "a severe limitation in sales of other things than lands" (Dawson, F., (1959) at 532).

129. See, e.g., Beswick v. Beswick [1968] A.C. 58 at 90-91 (Lord Pearce), 102 (Lord Upjohn).

130. Tito v. Waddell (No. 2), [1977] Ch. 106, Per Megarry V.-C. at 322. In the old case of Flint v. Brandon [1803] 8 Ves. Jun. 159, the Master of Rolls [Sir Wm. Grant] explained the position as follows: "This court does not profess to decree a specific performance of contracts of every description. It is only where the legal remedy is inadequate or defective that it becomes necessary for courts of equity to interfere ... In the present case complete justice can be done at law."

131. See, e.g., Wilson v. Northampton & Banbury Junction Railway Co. [1874] 9 Ch. App. 279 at 284 (Per Lord Selborne)

132. See, e.g., Hart v. Herwig [1873] 8 Ch. App. 860.

133. The rule is clearly stated by Lord Redesdale in Harnett v Yielding as follows: "Unquestionably the original foundation of these decrees was simply this, that damages at law would not give the party the compensation to which he was entitled: that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed. On this ground the court in a variety of cases, has refused to interfere, where from the nature of the case, the damages must necessarily be commensurate to the injury sustained" ([1805] 2 Sch. & Lef. 549 at 553.).

134. [1927] 1 K. B. 649. In that case, Wright J. said: "... I think a ship is a specific chattel within the Act" (ibid., at 661). See also, Hart v. Herwig [1873] 8 Ch. App. Cas. 860 at 864 (W.M. James, L.J.) and 866 (Mellish, L.J.).

135. [1982] 2 Lloyd's Rep. 336 (Lord Justice May) at 348, and, Parker J., ibid., at 343

136. [1975] 1 Lloyd's Rep. 465.

137. [1975] 1 Lloyd's Rep. 465, Lord Edmund Davies at 468, 469.

138. Adderley v. Dixon (1824) 1 C. & S. 607 at 610-612; Evans Marshall & Co. Ltd. v. Bertola S. A. [1973] 1 W. L. R. 349 at 380.

139. Sharpe, R. J. (1983) at 280.

140. Ibid., at 282.

141. Ibid.

142. See, e.g., Dyster v. Randall & Sons [1926] 1 Ch. 932. See also, Sharpe R. J., (1983) at 283 and the authorities cited there.

143. Spry, I. C. F., (1990) at 62.

144. As example, see the cases concerned with sale of ships which already discussed.

145. CN Marine Inc. v. Stena Line (The Stena Nautica) (No. 2) [1982] 2 Lloyd's Rep. 336 at 348.

146. Furmston, M., (1995) at 168.

147. However, the European Parliament and Council Directive on the Sale of Consumer Goods and associated Guarantees 1996 proposed that the consumer buyer should be given a right to "ask the seller either to repair the goods free of charge within a reasonable period, or to replace the goods, when this is possible ... (Art. 3 (4).

148. This paper will soon come out under the title: "Buyer's Right to Witholding Performance and Termination of the Contract.

149. See, e.g., Bradgate, R., & White, F., (1995) at 77.

150. This question is extensively discuused under English law in a separate paper titled: "Buyer's Right to Witholding Performance and Termination of the Contract.

151. Since the section provides: "If any action for breach of contract to deliver ..." which includes the seller's breach of his duty to deliver goods corresponding with the contract terms (s. 27 of the Act).

152. In particular, in the case of international sale of goods under which the buyer's place of business takes place in another country. In such a case, it would be hard for the court to supervise the performance of the court's order by the seller in a foreign country.

153. The language of Art. 46(1) which provides "the buyer may require" may be somewhat misleading. Although the provisions governing the remedy of specific performance are phrased in terms of the "rights" of the parties (as the language of Art. 45(1) suggests), they, as Secretariat's commentary clearly indicated, anticipate that, if one of the contracting parties does not perform, a court will order such performance upon the other party's request and will enforce that order by the means available to it under its procedural law. Accordingly, where an injured buyer applies the court for a decree ordering the seller to perform his obligations specifically on account of Art. 46 the court lacks the discretion to refuse to issue such an order unless the case falls within Art. 28. See Secretariat Commentary, (1979) at 27, Art. 26 (now Art. 28), para. 4, and, Art. 42 (now Art. 46), at 38, para. 8). See also Kastely, A. H., (1988) at 614 n. 40; Walt, S., (1991) at 214 n. 9.

154. It is worth noting that in the latter case, it may sometimes be difficult to decide whether the buyer, by demanding late performance, does demand that the seller perform under Art. 46(1) or whether he does offer voluntarily to modify the contract pursuant to Art. 29(1). If his demand is interpreted as a demand for performance he can claim damage for any loss he may have suffered as a result of the late delivery, while if his statement is interpreted as a modification of the delivery date he could receive no damages for late delivery. The question was posed by the Secretariat Commentary (see Secretariat Commentary, (1979) [Art. 46] at 38, para. 5)., but it was not further pursued at the Vienna Conference. It is a matter of construction of the buyer's declaration which is to be made under Art. 8. However, it has been suggested that in the case of doubt the declaration should be interpreted as requiring performance under Art. 46 (Will in Bianca and Bonell, (1987) at 340).

155. See also Enderlein, F.& Maskow, D., (1992) at 178; Will, in Bianca and Bonell, (1987) at 335-336; Kastely, A. H., (1988) at 613; Shen, Jianming, S.J.D., (1996) at 261.

156. See also Babiak, A., (1992) at 130.

157. The provision has been criticised by some academic writers (Horacia A. Grigera Naón, in Horn R.; Schmitthoff, C. M., (1982) at 114.).

158. Art. 42(1) of ULIS: "The buyer may require the seller to perform the contract: ... (c) if the sale relates to unascertained goods, by delivering other goods which are in conformity with the contract or by delivering the missing part or quantity, except where the purchase of goods in replacement is in conformity with usage and reasonably possible."

159. In practice, sellers prefer to accept the buyers' demand in order to avoid further damages for late delivery.

160. See also Will in Bianca and Bonell, (1987) at 336.

161. The 1978 draft version of Art. 46 (then 42) did not contain this remedy. It was incorporated into the Convention by an amendment introduced by a joint proposal at the Vienna Diplomatic Conference (see Official Records (1981) at 112-113). Of course, the remedy was proposed during the preparation of the Draft Convention by UNCITRAL but the committee did not accepted it (see, UNCITRAL, Yearbook, VIII (1977) at 43 paras. 243-260; Honnold, (1989) at 336. During debate on the amendment, some delegates noted that the right to repair was necessary to protect the buyer where delivered goods were defective but the defects did not constitute a fundamental breach (Official Records (1981) at 335-336).

162. Will in Bianca and Bonell, (1987) at 338; Enderlein, Fritz, in Sarcevic, Petra; Volken, Paul, (1986) at 192; Enderlein, F. and Maskow, D., (1992) at 181.

163. See also Schlechtriem, P., (1986) at 76; Will, in Bianca and Bonell, (1987) at 339; Enderlein, F. and Maskow, D., (1992) at 180.

164. See also Rolf Herber, in Herber, Bobbs Herry, (1980) at 118-119.

165. Art. 42 of ULIS made a difference between producer and manufacturer, on the one hand, and distributor and dealer, on the other. Art. 42(1): "The buyer may require the seller to perform the contract: (a) if the sale relates to goods to be produced or manufactured by the seller, by remedying defects in the goods, provided the seller is in position to remedy the defects; (b) if the sale relates to specific goods, by delivering the goods to which the contract refers or the missing part thereof; (c) if the sale relates to unascertained goods, by delivering other goods which are in conformity with the contract or by delivering the missing part or quantity, except where the purchase of goods in replacement is in conformity with usage and reasonably possible."

166. See also Enderlein F.; Maskow D., (1992) at 181.

167. See generally, Flechtner, H. M., (1988) at 59-60; Timothy, D., Hughes, in Hancock, William, (1990) at 101-60 and seq.; Fitzgerald, J., (1977) at 291-313 Shen, Jianming, S.J.D., (1996) at 274-277.

168. Professor Honnold says that the rule of inconsistency under Art. 46(1) is based on the likelihood of reliance of the seller on the buyer's declaration by stopping production, reselling the goods, or cancelling the reservation of shipping space (Honnold, (1991) at 362).

169. See Secretariat Commentary (1979) [Art. 46] at 38. See also Rolf Herber, in Herber, Bobbs Herry, (1980) at 117; Enderlein, Fritz, in Sarcevic, P.-Volken, P., (1986) at. 189; Schlechtriem, P., (1986) at. 76; Alejandro M. Garro, (1989) at 459 footnote 69; Ndulo, Muna, (1991) 21; Walt, S., (1991) at 214.

170. Will in Bianca and Bonell, (1987) at 336; Enderlein, F.; Maskow, D., (1992) at 178.

171. Rolf Herber, in Herber, Bobbs Herry, (1980) at 117; Walt, S., (1991) at 214, no. 11.

172. This view is supported by Art. 47(2) sent. 2 which provides "However, the buyer is not deprived thereby of any right he may have to claim damages for delay in performance".

173. Art. 76(1), applicable to breach by seller; cf. Art. 75. See Treitel, (1988) para. 43. See also Enderlein, F.; Maskow, D., (1992) at 178; Booysen, Hercules, (1991-1992) at 82.

174. See also Honnold, J., (1991) at 273.

175. Official Records (1981) at 76, 100, 304-5. See also, Shen, Jianming, S.J.D., (1996) at 271-3.

176. See also Honnold, (1991) at 274.

177. See also Honnold, (1991) at 365-366.

178. Art. 46(1) and (2). The Commentary on Art. 42 (now 46) expressly refers to Art. 26 (now 28). See Secretariat Commentary (1979) at 27, para. 3.

179. See also Kastely, A. H., (1988) at 635. See also Sutton, K. C., (1977) at 57.

180. When an amendment to Art. 46 for the purpose of incorporating the remedy into the Art. was proposed several delegations commented that the right to repair was unknown in their domestic laws (Official Records (1981) at 335-336).

181. Official Records (1981) at 335-336.

182. However, Kastely suggests that in order to promote international harmony a court should exercise its discretion under Art. 28 to order specific performance, sometimes in the form of an order to repair, even if it would not do so in a dispute involving a domestic contract (Kastely, A. H., (1988) at 636).

183. See also Knapp, in Bianca and Bonell, (1987) at 566.

184. See also Walt, S., (1991) at 214.

185. See Art. 32 (2): "if the seller is bound to arrange for carriage of the goods, he must make such contacts as are necessary for carriage to the place fixed by means of transportation appropriate in the circumstance and according to the usual terms for such transportation."

186. Art. 25 of ULIS: "The buyer shall not be entitled to require performance of the contract by the seller, if it is in conformity with usage and reasonably possible for the buyer to purchase goods to replace those to which the contract relates. In this case the contract shall be ipso facto avoided as from the time when such purchase should be effected." See also Art. 42 which provides: "(1) The buyer may require the seller to perform the contract: (c) if the sale relates to unascertained goods, by delivering other goods which are in conformity with the contract or by delivering the missing part or quantity, except where the purchase of goods in replacement is in conformity with usage and reasonably possible."

187. See "Report of the Committee of the Whole I Relating to the draft Convention on the International Sale of Goods", reprinted in UNCITRAL. Yearbook, VIII, (1977) at 42, para. 239 (Annex I).

188. Ibid., para. 240.

189. Pre-Conference Proposals on the 1978 Draft, art. 42, reprinted in, Official Records (1981) at 78, 111; Honnold, (1989) at 399 para. 3.

190. Honnold, (1989) at 551 para. 47.

191. Honnold, (1989) at 551 paras. 71-72.

192. Honnold, (1989) at 617, para. 55.

193. Honnold, (1989) 619, para. 78. It is interesting to note that prior to the Diplomatic Conference, a similar proposal was made to restrict the seller's right under Art. 62 if the buyer had not taken delivery of the goods and the seller could resell them without unreasonable or substantial additional expense or inconvenience (see, ibid., 400). But this proposal was apparently withdrawn.

194. Walt, S., (1991) at 215-216; Shen, Jianming, S.J.D., (1996) at 263-265. However, some observers appear to be of the view that the omission of the ULIS qualification from the present Convention is not fatal and that the seller may still be entitled to rely on trade usage under Art. 9(1) of the Convention to resist a claim for specific performance (see, e.g., Rolf Herber, in Herber, Bobbs Herry, (1980) at 116). According to this view, if the seller can prove the existence of such a usage he may be in a stronger position than he would be under ULIS since it will not be necessary for him to show that it was also reasonably possible for the buyer to procure the goods elsewhere. However, it is difficult to conceive of a usage that would lead to such an anomalous result. See in this respect, Ziegel, Jacob S. in Nina M. Galston and Hans Smit, (1984) at 9-3.

195. See, e.g., Honnold, (1991) at 518-520. Honnold, emphasising the restriction of the seller's right to recover the price on reasonable attempt to resell, argues that the mitigation rule is lex specialis in relation to the general rule requiring performance (ibid., at 521). See also Sutton, K. C., (1977) at 57; Lookofsky, Joseph M., (1989) at 256).See also generally, Thomas S. Ulen, (1984) at 390-393.

196. Official Records (1981) at 396-398; 429-430. Bearing in mind that two significant restrictive provisions of ULIS (Arts. 25 and 61 (2)), which provided that "the buyer shall not be entitled to require performance ..., if it is ... reasonably possible for the buyer to purchase goods to replace those to which the contract relates ..." have been dropped. See also Gabriel, H., (1994) at 87.

197. See, e.g., Schlechtriem, P., (1986) at 99. See also Knapp, in Bianca and Bonell, (1987) at 564-567; Farnsworth, A, (1979) at 249-251 (concluding that Art. 77 does not apply to an action for specific performance); Ziegel, in Nina, M.; Galston and Hans Smit, (1984) at 9-41 to 9-42; Kritzer, Albert H., (1989) at 220, 473 and 495-496. For more views, see Enderlein, F. and Maskow, D., (1992) at 308-309.

198. See also Feltham, J. D., (1981) at 355.

199. See also Kastely, A. H., (1988) at 622; Treitel, G. H., (1988) 145 para. 72; Kritzer, Albert H., (1989) at 473.

200. See also Kastely, A. H., (1988) at 622; Walt, S., (1991) at 215-216.

201. See in this regard, Farnsworth, A., (1979) at 250. At the Vienna Conference the Irish delegation argued that the first sentence of Art. [77] establishes a general duty to mitigate applicable to any remedy and that the second sentence is just one of several possible consequences of a failure to mitigate. In response to this interpretation, the United States' delegation observed that although he hoped such an interpretation would be made, he doubted that the prevision would be read in that way (Official Records (1981) at 396-397, paras. 61, 62).The Secretariat's Commentary does also explicitly state that Art. [77] does not affect the seller's claim for payment of the price under Art. [62] and the buyer's claim a reduction in the price pursuant to Art. [50] (Secretariat Commentary, (1979) at 61 para. 3).

202. As the US delegate amended his proposal during the debates (Official Records (1981) at 330, para. 47).

203. Official Records (1981) at 111, para. 3 (ii). A similar amendment was proposed to limit the seller's right to specific performance under Art. 62 (ibid., at 79).

204. Official Records (1981) at 113 para. 6.

205. Official Records (1981) at 330-332, in particular, paras. 58-59, 61, 66

206. Official Records (1981) at 133.

207. Official Records (1981) at 133 para. 5 and at 398 para. 78. See also, ibid., at 396 paras. 64, 65, 67, 68 and 73.

208. See also Kastely, A. H., (1988) at 622 and seq.

209. Further restriction can be found under Art. 82(1). Under this Arts. if the buyer is not able to make restitution of the goods in essentially the condition in which he received them he will lose the right to require substitute goods. Similarly, the rule on the requirement of the observance of "good faith" in interpretation of the Convention's provisions may come into play as a restriction on the remedy of requiring performance. Art. 7 (1) (see in this respect, Kastely, A. H., (1988) at 620-1).

210. Very few judicial decisions could be found in this respect. See Katouzian, N., (1377 H.S.) and Nikfar, M., (1372 H.S.).under Arts. 237, 238 and 376 of I.C.C.

211. Iranian academic writers have made much on the circumstances where the contract can be terminated by one of the parties. See in this respect, Imami, S.H., (1363 H.S.) vol. 1. at 289-290; Jafari Langroudi, M.J., (1354 H.S.) at 254-255; Jafari Langroudi, M.J., (1357 H.S.) at 80-82 and 726; Katouzian, N., (1989) vol. 3 at 216-219; Katouzian, N., (1992) vol. 1 at 180-181

212. As to the general nature of the provision, see Art. 444. See also Art. 222. It is worth noting that Arts. 729 and 730 of Iranian Civil Procedure followed I.C.C. However, these two provisions are not included into the new Civil Procedure passed in 1379 H.S. See also Arts. 42-49 of The Implementation of Civil Decrees Act 1356.

213. It is worth of noting that the rule accepted in this provision has not been adopted by all the jurists. In this respect, they are of two different views. Some hold that the undertaking party's mere refusal to perform gives the other party an option either to keep the contract alive and require him to perform his contractual obligations or to terminate the contract, whereas others suggest that his primary remedy in such circumstances is to require the defaulting party specifically to perform and that he will be entitled to terminate the contract for the undertaking party's refusal where he cannot receive what he bargained for by the remedy of requiring performance. See in this respect, Katouzian, N., (1989) vol. 3 at 217.

214. See the references mentioned in note 88.

215. In Iranian law, Dr Jafari Langroudi, relying on the general ratio (in the terminology of Iranian-Shi'ah law, malak) of Arts. 237 and 376, concludes such a general remedy. See in this respect, Jafari Langroudi, M.J., (1354 H.S.) at 254-255; Jafari Langroudi, M.J., (1357 H.S.) at 80-82 and 726.

216. The Holy Quran, chapter 5 (Mae'dah), verse 1: "O ye who believe, perform all covenants".

217. In a famous statement the Prophet of Islam said: "All Muslims are obliged to perform their contractual obligations". See Ameli, H., vol. 15, bab 20 at 30, hadith 4. The statement has been applied by Shi'ah Imams in various cases, see for instance, Ameli, H., vol. 12, bab 6, at 353, ahadith 1 and 2; vol. 16, bab 4, at 102, hadith 3 and at 103 hadith 5.

218. The relevant rewayat are cited in Ameli, H., vol. 12, bab 6, at 353, hadith 5; Ameli, H., vol. 14, bab 32, at 478, hadith 9; Ameli, H., vol. 15, bab 40, at 50, hadith 4. See generally, Ansari, M. (1375 H.Q.) at 214-215; Khurasani, M. K., (1406 H. Q.) at 144-145; Gharavi Isfahani, M. H., (1408 H. Q.) vol. 2 at 4 and seq.; Yazdi, S. M. K., (1378 H.Q) vol. 2 at 3-4; Najafi, M., and, Naeini, M. H., (1358 H.Q.) vol. 2 at 4 and seq.; Iravani, A., (1379 H.Q) vol. 2 at 2 and seq.; Khalkhali, S. M. K., & Rashti, M. H., (1407 H. Q.) vol. 2 at 8 and seq.; Touhidi, M. A., and Khouei, S. A. (1368 H.S.) vol. 6 at 15 and seq.; Khumayni, S. R. M., vol. 4 at 13 and seq.; Tabrizi, J., (1412 H. Q.) vol. 4 at 18 and seq.

219. This group of jurists, in justifying their view, invoke on the famous Quranic verse, i.e., "Ufou bel u'qoud" and various rewayat cited from the Prophet of Islam and the Imams of Shi'ah to which it has been referred in previous footnotes. See generally, Ansari, M. (1375 H.Q.) at 283-284;

220. Under this argument, the judge's intervention is, in fact, justified on the ground of his duty to protect the Islamic instructions (i.e., amre be al- ma'rouf wa nahy an al- munkar). Although this argument is not expressly supported by the jurists, it has been raised by them as a possible argument in favour of this approach (see, e.g., Yazdi, S. M. K., (1378 H.Q) vol. 2 at 126; Gharavi Isfahani, M. H., (1408 H. Q.) vol. 2 at 156, 158; Iravani, A., (1379 H.Q) vol. 2 at 67).

221. The general nature of the rule can be supported by the fact that the advocates of this view do not make any distinction between the breach of shart -e- fe'l and repudiation of the contract as a whole. See in this respect, Ansari, M. (1375 H.Q.) at 283 and 285; Najafi, M., and, Naeini, M. H., (1358 H.Q.) vol. 2 at 132.

222. Ameli, Z. (Shahid Thani), vol. 1 at, 191; Karaki, A. (Muhaqqeq Thani), vol. 1 at 262; Naraqi, A., (1408) at 44; Najafi, M. H., (1981) vol. 23 at 219; Ansari, M. (1375 H.Q.) at 285; Najafi, M., and, Naeini, M. H., (1358 H.Q.) vol. 2 at 132.

223. See, e.g., Makki, M. (Shahid Awwal), and Ameli, Z. (Shahid Thani), (1309 H.Q.) vol. 1 at 385-386; Tabatabaei, S. A., (1404 H.Q.) vol. 1 at 536; Ansari, M. (1375 H.Q.) at 284 (citing from a number of eminent jurists); Najafi, M., and, Naeini, M. H., (1358 H.Q.) vol. 2 at 132).

224. See, e.g., the statement of Allameh Helli in Helli, M. M. (Allamah Helli), Mabhath al- Shurout, at 180 in which he expressly says if the undertaking party fails to perform the judge cannot force him to perform.

225. See the statement of al- Saymuri in Ghayat al- Maram, as cited in Ansari, M. (1375 H.Q.) at 284. It is worth noting that according to this approach the mere refusal to perform a contractual obligation enables the buyer either to terminate the contract or to keep the contract alive and claim arsh for non-performance of the contractual obligation (see the statement of al- Saymury in Ghayat al- Maram, as cited in Ansari, M. (1375 H.Q.) at 285; Yazdi, S. M. K., (1378 H.Q) vol. 2 at 131).

226. See in this respect, Amin, S. H., (1984) at 29.

227. Najafi, M., and, Naeini, M. H., (1358 H.Q.) vol. 2 at 132.

228. The late Iravani, confirming such a reading of these authorities, observes that the language of them is simply to recognise the contracting parties' contractual rights (see, Iravani, A., (1379 H.Q) vol. 2 at 66 and 67).

229. This Principle is fully examined in the author's work titled: Buyer's Right to Claim Monetary Relief: A Comparative Study under English Law, the Convention on Contracts for the International Sale of Goods 1980, Iranian and Shi'ah Law".

230. It is interesting to note that the same jurists who give priority to the remedy of requiring performance, relying on the principle of la darar, argue that as long as an aggrieved party is able to require the defaulting party to perform, he can be adequately compensated in this way. Consequently, there is no reason to justify his option to terminate the contract for non-performance (see, e.g., Ansari, M. (1375 H.Q.) at 285; Khurasani, M. K., (1406 H. Q.) at 246). The question is that if the principle of la darar can come into operation in favour of the injured party it will also operate in favour of the defaulting party; where requiring him to perform the contract would put him into a bad situation and impose on him unreasonable loss and inconvenience.

231. It is worth noting that under I.C.C., where the party undertaking to do a positive act refuses to do so the other party may request the court to force him to honour his contractual obligation (Art. 237) and where compelling the defaulting party is impractical the other party would not be entitled to terminate the contract but he has to ask the court to arrange performance of the act at the expense of the undertaking party (Art. 239). The aggrieved party is entitled to terminate the contract only when compelling the defaulting party proves impossible and the stipulated act could not be done by someone else (Art. 239). The rules under this provisions are not placed into sale contract provisions. Accordingly, it is not quite clear whether or not they are to be extended to the case where the seller fails to perform his obligations.

232. See, e.g., Touhidi, M. A., and Khouei, S. A. (1368 H.S.) vol. 7 at 60; Tabrizi, J., (1412 H. Q.) vol. 4 at 419. See also Art. 414 I.C.C.

233. Relying on the ratio of Arts. 237 and 376 of I.C.C. one may conclude such.

234. See also Yazdi, S. M. K., (1378 H.Q) vol. 2 at 120.

235. However, this is in accordance with Shi'ah law. Under I.C.C., as already indicated, his right to terminate the contract is subject to the impossibility of compelling the defaulting party and that the stipulated act could not be done by someone else (Art. 239). It seems that no jurist has suggested such a provision in Shi'ah law. It is probably derived from French Civil Code (Arts. 1143 and 1144)

236. It is quite possible to read Art. 238 of I.C.C. in this way. That is, the buyer is not entitled to terminate the contract where demanding the seller cure his non-conforming delivery would impose on him unreasonable hardship. In such a case, he is only required to cure non-conformity at the seller's expense.

237. See, e.g., CN Marine Inc. v. Stena Line (The Stena Nautica (No. 2)) [1982] 2 Lloyd's Rep. 336 at 348.

238. [1975] 1 Lloyd's Rep. 465.

239. [1975] 1 Lloyd's Rep. 465, Lord Edmund Davies at 468, 469.

240. The Convention only refers to this qualification in respect of the buyer's demand to cure by repair (Art. 46(3), but it is also applicable to demand to cure by delivery of replacement goods. See in this respect, Chapter Two, Part Two, 3.2.

241. This suggestion could be easily inferred from the ratio of Art. 238 of I.C.C. That is, the court refuse to accept the buyer's application for requiring the seller to perform and arrange performance at the seller's expense.

242. For a detailed discussion of the issue, see another essay from the author titled: "Buyer's Right to Withholding Performance and Termination of Contract: A Comparative Study under English law, the Convention on Contracts for the International Goods 1980, Iranian and Shi'ah Law".

Pace Law School Institute of International Commercial Law - Last updated October 17, 2001

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