الضرر المترتب عن العدول على العربون وآثاره في تحديد قيمته

Abstract

This research aims to study the damages resulting from the breach of contracts involving earnest payment and their effects and the creation of a legislative mechanism to link the relationship between the existence of damages and the right to the ernest money on the one hand as well as a legislative mechanism to determine the extent to damages caused. The researchers has explained clearly that transactions involving earnest payment in the Libyan commercial market constitutes the bulk of transactions and are most common among merchants. This research takes an inductive approach, which is a library study based on the collection of information from original sources, and a descriptive approach, which is the study of the phenomenon or data and its precise description, and then examination and analysis of data by organization of the data, through the analytical approach, where the researcher conducted a field study of the practice of earnest payment and distributed quesionnaires to merchants and business owners who make deals involving earnest payment and to a sampling of buyers (consumers). This was statistically anaylsed. This study had several significant results, including: a direct correlation was found between the existence of damage and the right to the earnest payment when the contract was rescinded by one of the parties to the contract, where in when there were damages, there was entitlement toe earnest payment, and contrarily, non-entitlement to the earnest payment required when the contract was breached without any damages. The buyer suffers damages if he loses the opportunity to buy and to complete the transaction when the seller refuses to continue the contract, and the reverse. The absence of provisons in LIbyan legislation for calculating the value of damage resulting from the breach actually leads to disputes between contractors which are difficult o resolve in accordance with the principle of earnespayment. The lawmakers of Libya and Eqypt enactonly general laws on earnestpayment; there nospecial provision for it although transactions involving earnestpayment are wide-spread. The role of the judge and his powers are limited only to making a decision on the loss of eranes payment or a refund and the like, regardless of the value of damages and although there is no damage to the other party as a result of breach of the contract.