دور الجزاءات البديلة للفسخ في المحافظة على العقد : دراسة مقارنة

Abstract EN

Contracts are concluded in order to be performed, the rescission of contract is an exception.

Failure to perform the contractual obligations undermines the stability of the legal relations and positions arising from the contract, which is a waste of effort, time and money and a detrimental effect on the economic function of the contracts.

The law makes rescission as a remedy for the debtor's breach of its contractual obligations, and then the parties return to their positions before concluding the contract, which may serve the interest of the creditor in escaping of the contract which there is no hope of remaining, thus enabling the creditor to enter into a new contract.

At the same time, however, the rescission is a serious remedy that leads to collapse of contract, destabilizes the established legal centers and runs counter to the general rule that contracts must be performed.

The general rules aim at guaranteeing the performance of the contract, Hence, the rescission described as a precautionary measure and an exceptional remedy.

The principle that contract is to be performed, preserving the life of the contract as much as possibPle and keeping it in line with the general rules.

It is unfair to cancel a contract that required time, energy and expenses for its conclusion, there are large contracts important and influential on the economies of countries takes a long time or include multiple performances, so it is unfair to end after performing a large part of it.

It is said, therefore, that the contract should not be canceled altogether, but alternative treatments can be resorted to such as the reduction of the price and partial rescission, which leads to the maintenance of contract, even partially, as long as the contract accepts to dividing.

For these reasons, there is a need to look for a system aimed at maintaining the contract, even partially, and to protect the interests of its parties, especially in important or international contracts, whose termination results in greater damage than those resulting from an attempt to remedying it otherwise.