التعويض الاتفاقي ضمان لتنفيذ الالتزام

Abstract EN

This study was presented to discuss the consensual compensation as an indirect guarantee aimed at compelling the debtor to implement his obligation in kind, thus enabling the creditor to demand the amount of the agreed compensation without proving the damage presumed if the debtor breaches his obligation.

The problematic revolved around the legal definition of the effectiveness idea of consensual compensation to fulfil the obligation, and the limits of the judge's authority towards it.

To answer that, the analytical approach was adopted, where the study was divided into two axes.

The first axis was devoted to introducing a concept of consensual compensation as a contractual guarantee related to legal provisions that distinguish it from other similar legal systems that may interfere with it, while the second axis is presented to studying the various provisions established for it as a guarantee agreement and an effective insurance tool that allows preservation of rights, through the creditor's entitlement to him in the fulfilment of his legal requirements, that enjoys, as general rule, immunity from infringement, in application of the rule the contract is law of the parties.

Provided that it is subject to judicial review, with the exception of modifying its amount by decreasing or increasing in legally defined.