نشریه آموزه های فقه مدنی
پیاپی 7 (بهار و تابستان 1392)

Article 190 of the civil code has stated the general principles of the validity of the contracts. According to this article, the mutual agreement (consent) and intent are necessary to carry out a contract. Absence of the intent causes the annulment of contracts and the absence of assent is rendered of no effect. The concurrence of the intent and assent is not the provision of the validity of the contracts and it is possible to be settled a contract with intention while it has no authentic consent. Such a person who carries out the contract under the external illegal pressure is called a compelled person. The contract which is established under the unwillingness is no effect and with the subsequent consent of the compelled is enforceable. The civil code has no special ordinance about the subsequent consent but it has considered the owner permission as indication (revealer) in an unauthorized contract. The law scholars, with the adoption of the criterion of an unauthorized contract extend the verdict of article258 of the civil code to compelled contracts. From one side, with respect to the bases of an unauthorized contract and article 258 of the civil code and the provisions of the reasoning validity from the way of deductive reasoning from other side, it seems that the mentioned deductive reasoning is not the authentic deductive reasoning. At the end with citation to the legal principles, it could be accepted the Conveyance of the subsequent consent of the compelled person in compelled contracts.

The continued separation of the intent and consent (in the civil code especially in article 190 which has counted the intent and consent the principal provisions of the parties’ contract) creates the question of being lawful this separation in the mind of the researchers. Can we find an accepted aspect to this temporary separation? The Islamic jurists and law scholars have chosen two complete dissimilar opinions. The first have stepped two contradictory approaches. The first approach with reasoning and legal analysis has thought that intent is a topic implies to consent, therefore the bilateral and unilateral contracts with absence of consent like unauthorized transactions and enforced transactions because of intent lacking are void. The second approach based on psychological analysis finds intent and consent non separable basically. According to this approach, any bilateral and unilateral contracts consist of consent and consequently proving reasons of consent cannot be a proof for the invalidity of the bilateral and unilateral contracts with the lacking of customary consent. The second group with reasoning analysis is going to find a way with the possible temporary separation and cause the validity of added consent to intent; therefore, force and legal intent are coherent and unauthorized and compelled transactions are valid. The present research with criticizing the two attitudes states a new theory according to two principals. First, distinguishing different intent types from each other and second, the lawful (sharei) liability of the intent which is originated from customary consent. With this regard, the bilateral and unilateral contracts with absence of lawful consent are void. But still intent is available in the obliged and consequently the obliged actually is presumed intender.

The clause of the prohibited remarriage (polygamy) within the marriage contract is one of the new controversial propositions in the Islamic law. The prior majority of the Islamic jurists (according to the reasons of the decrees) believe that this provision is void. But with considering the documentation of the traditions which prove the validity and authenticity of this provision and absence of opposition to the Islamic law (sharia) and contract obligation, some other Islamic jurists especially the majority of the contemporary ones believe the validity and enforceability of this stipulation. But they argue over the executive guarantee and law effects of the validity of this provision. The present note criticizes and examines these two opinions and lastly criticizes both opinions (the opinion of the most famous Islamic jurists who chose the invalidity absoultly and those of the Islamic contemporary jurists who believe the validity of it absolutely without time condition. It announces a new attitude which is the invalidity in the aspect of the unrestricted provision of the prohibited remarriage and the validity in the aspect of the qualification to time. They believe that the violation of this stipulation causes the right of recession for the spouse. In the assumption of the invalidity of the provision does not follow the invalidity of the contracts and solely does the invalidity and ineffectiveness of the stipulation.

One of the provision should be examined in the validity of contracts is the fulfillment (tanjiz) of the provision. If it is accepted, the result will be the invalidity of the suspension (taliq) and the invalidity of contracts and if it is not the provision, the suspension will not makes the contracts be void. There is a debate between the Islamic jurists without any separation between the suspension in the creating the contracts and the origination of the proposition before sheikh Ansari. But from the time of the Sheikh, the suspension in the contracts has divided to the suspension of establishing the contracts and the suspension of the origination and from that time till now, Imami jurisprudence scholars have presented detailed and accurate discussions about the validity and invalidity of the different types of the suspensions. The famous Islamic jurists and law scholars have commented the validity of the suspension contracts in the origination mood and the invalidity of the suspension contracts with the suspension in establishing, while some great Imami jurists and civil law professors strongly defend the opinion of the validity of suspended contracts with the suspension in establishing and have presented considerable reasons. With the importance of the suspended contracts in the field of law contracts and especially with a look to the suspension in establishing like the suspension in origination, there are no united opinions between the Islamic jurists and law scholars and the civil code is silent. The present research aims to determine, criticize and explore the stated reasons to the validity and invalidity of this type of suspension and it is most acceptable the invalid theory from the perspective of argumentative jurisprudence and the case law.

Article 212 of the civil code considers that the transaction of minors, insane and immature persons is void because of incapacity to exercise rights and the next article states that the transaction of the interdicted person is ineffective while article 1212 of the civil code considers that the minor ownership is void article1212 and in exception, the minor gratuitous owning is valid. Article 1213 of the civil code considers that the lawful ownerships of the constant insane are absolutely void and lawful activities of temporary insane in healthy circumstance are valid. Article1214 of the civil code states that the ownership of immature is no effective but his gratuitous owning is valid. From one side, the transaction of such persons is void distinctly as mentioned in article 212 of the civil code and from other side; article 213 of the civil code considers it no effective. The present paper with analytic –descriptive approach tries to solve the available apparent contradiction with the analysis of legal-jurisprudential bases and Imami jurists and law scholars of Iran in the ground of the interdiction in this way that the legislator in article 212 of the civil code (volume1) has announced that the decrees of the mentioned interdicted persons are void and in the second volume, from article1207 to up has stated that the decrees of the mentioned ones in article 212 of the civil code and article 213 of the civil code have related to the persons who are prohibited to possess all or some of their properties with a court or law jurisdiction.

With the pronouncement of the Guardianship Council which the limitation (prescription) principal is illegal, it is not accepted by the civil affairs in Iran law, although it explicitly has been known by the previous civil procedure. From one side, some authors try to prove this principal in Imami jurisprudence and determine reasons and traditions as legal proofs and confirmation. Is the limitation accepted by Imami jurisprudence or not? If it is accepted, can the civil limitation be waiver or putting in possession or only it prohibits litigation? Meanwhile, the present note recommends this principal to be accepted by Iran’s legal system because of reasoning and the necessity of maintaining the judicial system and also it proves that the limitation principal in the civil affairs is not accepted by Imami jurisprudence as the ‘first order’ of the Shari’ah. The traditions which prove this principal are criticized and defected and subsequently it presents that the discussion on putting in possession or waiver is a matter out of argument and not occurring of these two effects is indisputable affair among Islamic jurists.

Article 191 explicitly states that the Proclamation of will is the occurring provision of the contracts. It is as mentioned in the article has no thematic and no effect. Everything is able to show the inward will of the offeror and offeree is enough to access the aim. The necessity of the will Proclamation to create the unilateral contracts is the object which there is disagreement between law scholars. Some groups believe that it is not obligation to declare the will in the unilateral contracts except those which the law has called their necessities. It means the Proclamation is not the provision of practicing unilateral contracts. Their main reason that they have presented is the unilateral contracts are not mutual agreement and consequently there is no necessary of agreement and the legislator does not determine this principal. The other group believes that there is no difference between the unilateral contracts and bilateral ones and so does the decree of article 191 enhance to the unilateral contracts. According to their attitude, because the law is originated from the society and is enacted the connection between people in the society it only practices affairs which relates to the field of the community and connects the outwards to inwards. With respect to the latter reason and Imami jurisprudence approach to the matter (article167 of Iran’s constitution) and the bases of the decree of article191, it seems the latter reason is defensible and the Proclamation of the will in unilateral contracts as an occurring provision is necessary.

One of obstacles in spouses’ inheritance is divorce. If it takes place, naturally and legally there will be no spouses’ inheritance. But when we cite the opinions of the Islamic jurists and law scholars, we see cases that in spite of occurring divorce the Islamic jurists believe the spouses ’inheritance from each other, in other words it is an exception. One of these exceptions is when a man divorces his wife in an ill circumstance which ends to death in a revocable divorce or irrevocable divorce. In this circumstance, the woman inherits the husband in some conditions. But in the present rules, the noble legislator briefly indicates the woman’s inheritance some clauses in the divorce and is silent to the decrees of many relevant cases. The present paper with using the authentic and liable jurisprudential sources and the law scholars’ attitudes aims to clear ambiguity of the present laws, meanwhile determining all stipulations and propositions relating to the women’s inheritance in such condition and at the end of the paper suggest the proposals which should be codified coherent to this case.