The dominant jurisprudential doctrine and the prevailing view among civil law scholars are grounded in the principle that, in cases of contractual breach, the primary remedy is specific performance, compelling the obligor to fulfill their obligation. This preference over the right of rescission has significantly shaped judicial practice. However, several contemporary legal scholars advocate an alternative approach, aligned with comparative legal systems, which recognizes the right of rescission alongside the right to compel performance, particularly in cases of delayed fulfillment. Recent judicial trends demonstrate a gradual shift toward this perspective.
This article examines the jurisprudential foundations of the prevailing view and its influence on Iranian positive law, an aspect often overlooked in prior research. In classical jurisprudential texts, delayed performance—so long as the principal obligation remains executable—has not been regarded as grounds for rescission. Under this view, the loss of temporal desirability of performance is not classified as compensable damage, since damage has traditionally been confined to measurable property loss. Consequently, damages arising from lost opportunities due to delayed performance—akin to loss of profit (adam al-nafa')—have historically lacked legal remedies.
Through a combined jurisprudential and legal analysis, this article explores the emerging judicial approach that treats damage as a factual matter to be determined according to customary understanding rather than independent ijtihad. Furthermore, by revisiting the application of the la darar principle , the article argues that in certain circumstances, monetary compensation may be insufficient to remedy the situation, and thus granting an initial right of rescission may serve as a more proportionate and effective legal remedy