الفهرس 
الفصل التمهيدييوجد فقط 14 صفحة متاحة للعرض العام
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المستخلص
1-After God - Glory be to Him - enabled us to complete this thesis: (Previous breach of contract performance), and the goal was to reach a clear idea - in concluding this research, I cannot help but thank God - Glory be to Him - for His success and guidance. To Him - Glory be to Him - is all praise. First and foremost, upon completion of this thesis, a number of conclusions have been reached, which can be identified by the following points: First: Study results: 1-The function of the contract is essentially an economic function, which is the exchange of wealth and benefits between individuals, so that as a result of this exchange, mutual returns are achieved and an increase in the wealth of the two contracting parties. Any contractual system aims to maximize the profits of the two parties to the greatest possible extent as a result of their contractual relationship. Which is generally reflected in the wealth of society. 2- The idea of pre-terminating the implementation of the contract is a legal concept that involves an important aspect of the behavior of the two parties, and this aspect relates to The debt issued by the debtor before the deadline for carrying out his obligations, and the creditor concludes on this basis that the default will It happens in the future. The idea of a previous breach of contract is not related to the actual facts. Rather, it takes into account the inferred facts, and for this reason it cannot be accepted with one glance, and therefore the way in which it affects The law has a simple result that does not conflict with logic, because logic indicates that the reason must precede the reason, and that the An effect must follow the effect after its existence. from a philosophical point of view, the previous failure to implement the contract is the reason for punishment, for breach of the contract, and its cause does not It precedes its cause, and the cause will not lag behind its result (except the final cause) because it can precede its effect in perception, because it is existence, but its existence is not in the mind, This disturbance occurs in advance and is the final cause of punishment, because it precedes the awareness of the punishment in the mind, but there is no awareness of it. Ergonomic, it is possible to have an order of influence on perception. 3- The Saudi Civil Law, and most comparative laws, stipulate special rules for the negotiation process, but the general rules of these laws are not fulfilled except when concluding a contract, that is: when there is a specific positive willingness to contract, the contract is positive, that is: when the contract has the right to Accepting the opposite and the resulting effect, the contract is positive; Because it arises from responsibility. 4- The provisions and principles that govern international trade depend on a set of conditions and principles, close to Anglo-American law, and mentioning the international community and international trade. We hope that the Kingdom of Saudi Arabia will occupy the position it deserves in this field, and that the systems that govern this trade will have an impact. On our international dealings, therefore, it is necessary to achieve harmonization between the national rules and regulations governing international trade contracts. 5- The Vienna Agreement grants international contracts for creditable goods the ability to stop fulfilling its corresponding obligations, when it is expected that the debtor has violated the main obligations related to the contract, that is: facing a prior breach of performance of the contract, and these are its possibilities. Standard capacity will not be met and deferred obligations are expected in the future. 6- The penalty for violating the contract, and the cause will not delay its result (except for the final cause), because it can precede its effect in perception, because it exists, but its existence is not in the mind. This prior failure to perform the contract occurs, and is the ultimate cause of the penalty, because it precedes the awareness of the penalty in the mind, but there is no external realization, so the effect can be arranged upon awareness. On the contrary, it is convinced that it is motivated by a duty to take into account the interests of the creditor in including certain demands in certain separate chapters and, regardless of their severity, it cannot always ignore the consequence of a future default. Accordingly, it cannot be taken for granted that the idea of a prior breach of contract must To be administered as a general principle, it includes cases falling under all the circumstances provided for by British and American laws. However, on the other hand, it is necessary to take advantage of this legal organization well established in Anglo-American law; Because the actual needs to be met are similar in different societies. 7- The special nature of the prior breach of contract implementation appears through the specificity in which the elements of liability are classified. The pillar of prior liability for the contract, which we call (the prior breach of contract implementation) is the violation of legal trust resulting from the wrong model of negotiation or the previous contract, and it is used to accept or Withdrawing its advantages, or violating the obligations imposed by the principle of good faith and the damage element, it is distinctive that it occurs when the contract is concluded, and when the contract is expected to be concluded and prepared, it must be compensated in accordance with the provisions of this liability, and the affected person does not receive compensation for the actual losses he incurred, and the profits he incurred. lost it; Because this contradicts an important fact, which is that the contract has not yet been concluded. 8- As we noted through the research, some legislations have proposed the idea of dealing with prior breach through contract implementation as an independent legal principle regarding independent conditions that have their own provisions, such as American Anglo, and prior breach of contract implementation is also called (anti-contract breach), after confrontation. Some Objections: The idea is defined as a law and a list of laws, but the authors and supporters of the idea rely mainly on practical and economic considerations. To protect the creditor from violating the implementation of the debtor’s contract in the future. In addition to Anglo-American laws, we noticed that some international trade agreements also adopted the idea of prior breach of contract performance, the most famous of which is the 1980 United Nations Convention on the International Sale of Goods. And the Hague Agreement of 1980 regarding the assignment of goods. We refused to accept the ideas of Latin law, such as the French Civil Code, and legislation in civil law before enforcing the contract. 9- The function of annulment differs from the function of the contract itself. If the function of the contract aims to maximize the profits of the two contracting parties, then the function of annulment aims to reduce their losses to the least possible extent, which are losses that may arise from continuing an existing contractual relationship in which one of its conditions has been violated. Any A sound contractual system must allow the survival of a contract that is not profitable for both parties, or at least for one of its parties. It is true that contractual deals carry a degree of risk tolerance, and therefore one party may profit or lose, but this profit or loss must remain within the limits of what the two parties agreed upon, or within the limits set by the legislation itself, otherwise the law must intervene to restore the balance between the two parties. Terminating the contract may be the only way out. 10- The principle of prior or expected breach contributes significantly to avoiding further losses resulting from considering the contract existing. Giving the creditor party the option to consider the contract terminated, and the right to immediately demand compensation, reduces the losses that may result as a result of the period of the deadline for fulfillment, thus accelerating the termination of the contract. It contributes to reducing losses. 11- The contract is a continuous relationship between two parties for a period of time that extends between its conclusion and its implementation. Once the contract is concluded, each party has reasonable expectations that the other party will implement what it has committed to at the time specified to implement this commitment. This implementation, as well as expectations, require that each party remain fully prepared for implementation, and to refrain from anything that might frustrate the other party’s expectations, or affect this readiness. If one of the two parties expresses its lack of readiness, the other must not remain silent, waiting for the implementation date to arrive, which may be far away. He must take action to preserve His rights, and reducing his expected losses, and therefore it is assumed that he will be given the right to request guarantees of good performance from the other party, or the right to terminate the contract immediately. 12- Commitment to prior breach of contract implementation and the possibility of imposing legal penalties on the contract is not the only effect of prior breach of contract implementation. Moreover, the creditor can ignore the previous breach and not consider it a violation of the contract, and here he has no choice but to wait for actual implementation, and implement it according to the compensation to be implemented. At the same time, the debtor can withdraw from its previous implementation. 13- It has been established in civil law that compensation is one of the means of eliminating damage, and that it is one of the general penalties that result from prior breach of contract implementation, when the judge is unable to recover the original disputed right. Because of its expiration, destruction, or death. This appears clearly in contracting contracts, and the effect of this prior failure to perform the subject of the contract on the contractor. In this case, the guarantee is to compensate the debtor for the damage he has suffered. 14- Compensation for this situation must be made; Due to the existence of the right to it, and the availability of certain elements and conditions that would affect it and its validity, all of which depend on the extent and amount of the loss, and what the creditor incurred as a result of the debtor’s prior failure to implement the contract. In this case, the creditor has a choice between requesting that the debtor be forced to perform the obligations, or Requesting termination of the contract due to the debtor’s mistake, all in accordance with the general rules. 15- The debtor will be responsible for the damage to the creditor resulting from his prior failure to implement the contract, if the debtor rejects the contract, and this rejection would harm the general obligation established in favor of the debtor by being in good faith in performing his contractual obligations. This is with regard to the debtor’s refusal, but in the event that he does not By fulfilling the original obligation, these original obligations that the debtor has not fulfilled are added to the effect of the deadline for fulfillment, and thus the due date is postponed if the debtor is in good faith, and this applies in the event that the debtor has already implemented the contract, as we explained. previously. Second: Recommendations: After presenting the most important conclusions and ideas contained in the research, we would like to present the most important recommendations regarding the issue of prior breach of contract performance, and arrange these recommendations as follows: 1- With regard to the penalty, in order to preserve the rights of both parties, we suggest that the penalty be to delete the deadline; So that the creditor can implement it immediately, and if the creditor does not extend the deadline, it will cause specific damage to it or if the implementation is not convenient for him at that time, we suggest that he confiscate the contract to terminate the contract; To avoid potential harm to the creditor, or reduce the harm caused to the debtor due to the rapid performance of contract obligations. 2- - We recommend expanding the scope of this clause to include prior breach of direct performance of the contract, especially when the debtor declares that he is not prepared to fulfill his contractual obligations, or adopts practices that do not deviate from the facts of the case, and this position will suspect that he will be responsible for the next violation of the importance of contractual obligations.
3- We suggest that judges determine, in determining error, the extent of reasonable inferences and the extent of conclusions according to the circumstances of each case and the degree of conclusion required.
4- The Saudi Civil Law stipulates the principle of good faith at the stage of negotiation and conclusion of the contract, with a focus on the obligations arising from the principle, while the “Saudi Civil Law” does not stipulate this principle except at the stage of executing the contract. 5- A judgment that expires may not be beneficial to the creditor, and rapid implementation may not be beneficial to the creditor at least; Because people appreciate the value they receive in treatment, and this value is not estimated by quantity alone, but quality has great weight in this assessment. Therefore, perception may be useful sometimes, but it is useful at another time, and it will be appreciated by the parties in the relationship. On the other hand, the debtor may not be able to implement quickly; Because he has not requested a deadline, other than to estimate that he cannot satisfactorily discharge the debt before it arrives, and may not currently have the means to assist in the performance of the debt. But he puts himself in a position to demand prompt implementation of his mistakes. Accordingly, it would be preferable for the proposed text to include provisions allowing for termination of the contract when prompt implementation is not in the interest of the creditor or debtor. This solution fills the logical gap resulting from the statement that a fine can be imposed on the basis of findings alone. 6- We recommend that the Saudi legislator add a text in the Saudi Civil Transactions Law: “In mutual contracts, if one of the contracting parties does not perform for the other contracting party in the future one of his important obligations in the contract, the other party may - after presenting a warning - resort to halting the implementation of his financial obligation, provided that It takes into account the nature of the contract, the provisions of law, custom, and equity in determining the important obligations arising from “no” in the event of disagreement on these matters.” 7- We recommend that the Saudi legislator propose two forms of prior breach of contract execution: directly and indirectly. It may be difficult to verify the strength of the conclusion and whether the result is clear. Therefore, the proposed text does not call prior breach. 8- We recommend that courts evaluate the circumstances under which requests to cancel or terminate the contract are best, estimated disputes related to these issues can be resolved, the time required to provide insurance and its suitability can be determined, and whether or not prompt implementation is in the interest of the creditor, including the debtor’s ability. 9- We recommend that the legislator allow the debtor to provide insurance that guarantees the performance of contractual obligations. Unless insurance is provided, the contract period will not be canceled or terminated. This is in order to maintain the stability of the transaction and avoid wasting the benefits envisaged in concluding the contract. 10- We recommend that the Saudi legislator add a text that allows termination of the contract when rapid implementation would cause harm to the creditor or disempowerment of the debtor. This solution fills the logical gap resulting from the statement that sanctions can be imposed on the basis of conclusions only. The canceled penalties and the compensation resulting from them do not depend on the statements of the small debtor or his direct behavior, but rather on the basis of the decrease in the period and the settlement of the debt. 11- We call on the Saudi legislator to amend the Saudi Commercial Law by adding provisions regulating premature breach of the contract as stipulated in the unified documents for international sales, in a way that suits the nature and specificity of local and international commercial transactions, or to amend the text of Article (183) of this law to allow the application of internationally recognized principles and rules. If the text in this law is vacant, and this is not limited to new transactions that have no basis in Saudi law.