The Islamic Jurisprudential and Legal Examination of the Executive Guarantee of the Violation of the Negative Condition

Clauses in contracts is one of the most important issue of the law of the contracts and in reality, it is an emergence (form) of autonomy (the ability of the person to make his or her
own decisions) in the contracts. One of these clauses is the condition about performance of an act which is determined in two forms: from one side, positive and negative and from the other side, material and legal in the contracts. In the Civil Code of Iran, the legislator has specified on the condition of positive and negative act in Articles 234 and 237 but it has not specified on the condition of material and legal act. It has also stated the violation of the negative and positive condition in the Civil Code of Iran in Articles 237 and 239 which determines that there are no differences between the executive guarantee of them in apparent. This article is going to answer this question that if the executive guarantee of the violation of negative condition is the same as the executive guarantee of the violation of positive condition which has determined in Articles 237-239 or it should be looked in the other executive guarantee. For answering to the mentioned question, it has tried to see the issue from the view of the legislator with considering the instances of the violation of the negative condition in the civil code of Iran and it has been studied from the point of the Islamic jurists and law scholars and Precedent (judicial precedent) and lastly, the intended idea and its reasons which are the right of the revocation of the person to him the promise is to be made and the legal right to claim compensation has been implied which it differs from the executive guarantee of the violation of positive condition.