Concept and effects of notice for performance (Mise en demeure) in law of obligations with Comparative Study in French Law

Document Type : Research Paper

Author

Associate Professor of Private Law

Abstract

Article 226 of the Civil Code refers to the word " notice for performance " the adaptation of the French term (Mise en demeure) in Article 1146 of the French Civil Code 1804 (Article 1231 of Reformation 2016) means "delaying" which the writers of Iranian civil code have translated into notice for performance and in fact, it is a kind of no-action warning. In France, the concept and effects are considered for this institution which can be achieved with the same results in Iranian law. its role in the responsibility and risk transfer, and other effects can be accepted in the law of Iran. Although this institution has been raised in civil law, the doctrine has not yet addressed this institution and its effects. The importance of this institution is such that the French civil code in the 2016 reform allocates a part to the notice for performance and the sanction of the contracts is subject to this order. Therefore, the notice for performance in Article 226 is more than a common term that it tells of the arrival of the Roman French institution in the literature of Iranian law of obligations which is studied in this research comparatively. The main purpose of this article is to study the concept and effects and exceptions of this legal establishment with the method applied in comparative civil law and based on a descriptive-analytic method.

Keywords


 Ambalam, Kannan (2014) “Challenges of Compliance with Multilateral Environmental Agreements: the Case of the United Nations Convention to Combat Desertification in Africa”, Journal of Sustainable Development Studies, Vol. 5, No. 2, pp. 145-168.
 Bothe, Michael (1996) “The Evaluation of Enforcement Mechanisms in International Environmental Law”, in: Enforcing Environmental Standards: Economic Mechanisms as Viable Means? Rüdiger Wolfrum (ed.), Germany: Springer.
 Beyerlin, Ulrich & et al. (2006) “Conclusions Drawn from the Conference on Ensuring Compliance with MEAs”, in: Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia, Ulrich Beyerlin et al. (eds), Netherlands: Martinus Nijhoff Publishers, pp. 359-369.
 Bodansky, Daniel (2010) The Art and Craft of International Environmental Law, United State: Harvard University Press.
 Bankobeza, Cilbert (2007) “Comliance Regim of the Montreal Protocol”, in: The Montreal Protocol: Celebrating 20 Years of Environmental Progress, Ozone Layer and Climate Protection, Donald Kaniarupp (ed), London: Cameron May, pp.75-106.
 Boyle, Alan E. (1991) “Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions”, Journal of Environmental Law, Vol.3, No.2, pp. 229-245.
 Fodella, Alessandro (2009) “Mechanism for Promoting Implementation and Compliance with the 1989 Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal”, in: Non- Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Tullio Treves et al (eds), The Hague, The Netherlands: T.M.C. Asser Press, pp.33-48.
 Fitzmaurice, Malgosia & Catherine Redgwell (2000) “Environmental non-compliance Procedures and International Law”, Netherlands Yearbook of International Law, Vol. 31.
 Goeteyn, Nils & Maes, Frank (2011) “Compliance Mechanisms in Multilateral Environmental Agreements: An Effective Way to Improve Compliance?, Chinese Journal of International Law, 10: 4, pp. 791-826.
 Jacur, Francesca Romanin (2009) “Triggering Non-Compliance Procedures”, in: Non- Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Tullio Treves et al (eds), The Hague, The Netherlands: T.M.C. Asser Press, pp. 373-38.
Jacur, Francesca Romanin (2009) “The Non-Compliance Procedure of the 1987 Montreal Protocol to the 1985 Vienna Convention on Substances that Deplete the Ozone Layer”, in: Non- Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Tullio Treves et al (eds), The Hague, The Netherlands: T.M.C. Asser Press, pp. 11-32.
 Koskenniemi, Martti (1992) “Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol”, Yearbook of International Environmental Law, Vol. 3, Issue. 1, pp. 123-162.
 Lang, Winfried (1996) “Compliance Control in International Environmental Law: Institutional Necessities”, Institut für ausländisches öffentliches Recht und Völkerrecht, Vol. 56, No.3, pp.685-695.
 Montini, Massimiliano (2009) “Procedural Guarantees in Non-Compliance Mechanisms”, in: Non- Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Tullio Treves et al (eds), The Hague, The Netherlands: T.M.C. Asser Press, pp.389-405.
 Negre, Celine (2010) “Responsibility and International Enviorenmental Law”, in: Oxford Commentaries on International Law, The Law of International Responsibility, Crawford, James, Alain Pellet and Simon Olleson, Kate Parlett (Assistant) (eds), New York: Oxford University Press.
 Oberthure Sebastian (2015) “Options for a Compliance Mechanism in a 2015 Climate Agreement”, Working Paper, Vrije Universiteit Brussel, Institute for European Studies, pp. 1-16.
 Pineschi, Laura (2009) “Non-Compliance Procedures and the Law of State Responsibility”, in: Non- Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Tullio Treves et.al (eds), The Hague, The Netherlands: T.M.C. Asser Press, pp. 483-498.
 Romano, Cesare P. R. (2000) “The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach”, International Environmental Law and Policy Series, Vol. 56, The Hague, the Netherlands: Kluwer Law International.
 Treves, Tullio (2009) The Settlement of Disputes and Non-Compliance Procedures”, in: Non- Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements, Tullio Treves & et al (eds), The Hague, The Netherlands: T.M.C. Asser Press, pp.499-518.
 
Documents
Draft Report of the Second Meeting of the Implementation Committee under the Non-Compliance Procedure for the Montreal Protocol. UNEP/OzL.Pro/ImpCom/2/3, 12 April 1991.
 Paris Agreement, 12 December 2015.
 Vienna Convention for the Protection of the Ozone Layer, 22 March 1985.
 United Nations Framework Convention on Climate Change (UNFCCC), 9 May 1992.
 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 25 June 1998.
 Report of the Seventh Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer (27 December 1995), Decision VII/18. Compliance with the Montreal Protocol by the Russian Federation, UNEP/OzL.Pro.7/12.
 Report of the Tenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP/OzL.Pro.10/9, 3 December 1998, Annex II: Non-Compliance Procedure.
 Report of the Tenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, Doc. UNEP/Ozl. Pro.4/15, 25 November 1992, Annex V: Indicative List of Measures that Might be Taken by a Meeting of the Parties in Respect of Non-Compliance with the Protocol.
 Report of the Conference of the Parties to the Basel Convention of the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Doc. UNEP/CHW.6/40, 10 February 2003, Annex: Establishment of a Mechanism for Promoting Implementation and Compliance, Decision VI/12.
 Report of the Conference of the Parties on its Seventh Session, UN Doc. FCCC/CP/2001/13/Add.3, 21 January 2002, Procedures and mechanisms relating to compliance under the Kyoto Protocol, Decision 24/CP.7, Annex: Procedures and mechanisms relating to compliance under the Kyoto Protocol.
 Report of the First Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, UN Doc. ECE/MP.PP/2/Add.8, 2 April 2004, Decision I/7: Review of Compliance, Annex: Structure and functions of the Implementation Committee, procedures for the review of compliance
 Report of the Meeting of the Parties to the Protocol on Water and Health to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Decision I/2: review of compliance, UN Doc. ECE/MP.WH/2/Add.3, EUR/06/5069385/1/Add.3, 3 July 2007, Section.VI.
 [Non-compliance] [Compliance] Procedures under Article 17 of the Stockholm convention on Persistent Organic Pollutions, Doc. UNEP/POPS/OEWG-NC.2/2 (27 April 2007), Annex.
 Declaration of Second Ministerial Conference “Environment for Europe”, Lucerne (Switzerland), 28-30 April 1993.
 Convention on Long-range Transboundary Air Pollution, Report of the Fifteenth Session of the Executive Body, UN Doc. ECE/EB.AIR/53, 7 January 1998, Decision 1997/2, Annex III, para. 4(a).
 Ozone Secretariat, United Nations Environment Programme, Handbook for the International Treaties for the Protection of the Ozone Layer, Eleventh edition, The Secretariat for The Vienna Convention for the Protection of the Ozone Layer & The Montreal Protocol on Substances that Deplete the Ozone Layer, 2017.