mohaddeseh safarkhani

Fraud (Tadlīs) refers to deceit that occurs when a defect is concealed, or a non-existent perfection is attributed to the subject of a contract. At the same time, the option of defect and the option of breach of description arise due to the presence of an existing defect and a failure to fulfill the agreed-upon description, respectively. This shared characteristic might make distinguishing between these options in similar cases difficult and lead to errors in the application of the relevant legal rules. However, most legal scholars distinguish fraud from the option of defect and the option of breach of description by considering the element of intent and willful deception, treating the relationship between them as one of generality and specificity from a particular perspective. Nonetheless, from a jurisprudential perspective, such a view seems to conflict with the purpose of the Sharia in establishing options to compensate for the damage caused, and in some cases, it may result in the failure to compensate the harmed party. Therefore, in order to fulfill the Sharia’s objective of ensuring compensation for the injured party, we have sought to examine the nature, effects, and rules of each of the mentioned options in order to accurately explain the relationship and possible differences between them.

Most jurisprudential sources address misrepresentation or deception (Tadlis) in marriage contracts and elaborate on its instances. On the contrary, the Civil Code does not touch upon the option of deceit in the marriage contract and offers nothing in regards to its instances and effects. Therefore, this paper first examined. the jurisprudential and legal senses of misrepresentation, and then investigated the conditions and elements of misrepresentation. It was revealed that misrepresentation only requires external/objective elements (actus reus), not mental elements (mens rea). Afterward, a number of old and new instances of misrepresentation were examined considering modern developments in science. Some instances fell beyond and some fell within the scope of misrepresentation. In terms of misrepresentation effects, the effects were positive both during the engagement and when the marriage contract is signed, and the party committing misrepresentation assumes criminal liabilities as well as civil ones.