جستجوی مقالات مرتبط با کلیدواژه « استناد به مالک » در نشریات گروه « فقه و حقوق »

Most law scholars and well-known Islamic jurists consider that the fudhuli (unauthorized) regulations are of the the general rules of the agreements (contracts) and have generalized (spread) it to all types of the contracts. This broadness causes that some law scholars think that some fudhuli (unauthorized) rulings is in conflict with the public order. In contrast in the law of England as an excuse to maintain public order there are exceptions to the rule “the impossibility of transferring of title by the unauthorized person (a person has no ownership right)” and in some case the transfer of another person’s property is effective. Moreover, in the law of this country to facilitate the business affairs, the transaction of the agent acting without or outside his authority or the transaction of any person who pretends (claims) as an agent are effective. The disagreement between attitudes about efficiency of the legislation about the transfer of another person’s property originates from the difference of basics of “the transaction (sale) of another person’s property” in these two legal systems. In this paper with differentiating between the fudhuli (unauthorized) transactions of “mora’a” (meaning in the sale there is a right for the third person and the efficiency of the transaction relating to fulfil his right) and “moquf” (meaning ite efficiency relates to the consent of the true owner), it will be revealed that ineffectiveness of the recent transactions has been the theory “assigning the contract of sale to the true owner” and in the law of England the transaction of another person’s property is established in proportion to the ruling pursuant to the basics “agency resulting from ratification” and the Contract management (It’s a term which is used in the law of Iran and not explicitly in the law of England meaning: Contracting in situation that it does not conform to the accepted criteria (rules) by the legislature but the legislature for different social reasons is not going to announce its annulment).

Article 196 of the civil law finds it feasible to prove transaction performance for a third party even after the contract conclusion and, in case of being proved, the transaction is considered to have been performed for a third person. Despite the purport understood from the term “transacting party”, the majority of the jurists realize the foresaid article as being indicative of transactions by an agent for an Undisclosed client. The present article’s authors are of the belief that the subject of the article includes transactions by an agent and a rouge and its rulings refer to the article 197 of the civil law. This way, if the contract subject is an objective and specific property belonging to another person, there would be essentially no need for proving the agency contract’s intention and its justification only causes the transaction to be excluded from unauthorized contracts and elicits the owner’s bound to the contract. On the other hand, if the transaction subject is an action to be done by the transacting parties, proving of the agency or unauthorized contract’s intention would be useless due to being non-attributable and the contract is condemned to invalidation. Thus, the rulings of the article 196 should be interpreted for supporting the transacting party and not the Undisclosed person. The comparative study of these verdicts in Iran and England’s laws can assist the reduction of conflict between the purports of the article 196 and the commutative justice and public order considering their similarities.

In Shia jurisprudence and law of Iran the ruling related to unauthorized transaction in most cases is ineffectiveness. In English law, the representative's unauthorized transaction for himself except for exceptional cases is void and his transaction for others could be authorized only when his intention of representation is revealed. This difference in ruling is rooted in distinct bases of these systems. The authors, as the result of studying these bases, believe that the basis for unauthorized transactions in Shia jurisprudence and law of Iran is the "reference to the owner" theory, while the English law follows the "administration of contracts" theory for the unauthorized transactions of the representative for himself and "representation resulted from authorization" theory as regards the unauthorized transaction of the representative for the owner. Despite the difference in terms of bases and rulings, there are many features shared by the above mentioned legal systems as to effects of unauthorized transactions; insofar as one can, against the majority, claim that the rules of unauthorized transactions in Imamiyah jurisprudence and law of Iran, like English law, can only be implemented under certain conditions. Examination of the effects of the unauthorized transactions demonstrates that permission of denial or authorization and adherence of the authorized representative to the transaction are among the most significant effects of the unauthorized transaction in both legal systems. Acceptance of the aforementioned facts as the common effects cause the following questions: whether the permission of denial or authorization can be inherited or transferred by/to others? Whether the authorized owner has the right to terminate or transfer the transaction subject before the authorization? Answering these questions and the comparative study of the said effects contribute to the better accommodation of this type of transactions with the public order and globalization of the contracts law.