جستجوی مقالات مرتبط با کلیدواژه « بطلان » در نشریات گروه « فقه و حقوق »

Due to social developments, possible contracts have many practical examples such as insurance contracts, pre-sale of artifacts, etc and are popular in the society. This contract is not defined in Iranian law and jurisprudence, and there is a difference of opinion regarding its nature and authenticity; Some jurists consider this type of transaction to be gratuitous and invalid, while others consider it to be a synonym of suspended contract, contract of chance, and forbearance contract. But this type of contract is accepted in English law and a contract that at least part of it is related to an emergency or possible situation. The effect of this contract is created separately at the time of the conclusion of the contract and the parties have mutual obligations, but the recovery of one of the parties to the contract or both parties due to the effect of the contract depends on luck and the profit and loss of the parties and its amount depends on a possible incident in the future. Nevertheless, despite the similarity with other similar contracts, the mentioned contract is different in terms of basics and conditions, and its characteristics are covenantal and continuous. It does not consider it effective and as a result the possible contracts are valid and valid.

fact that the verdict should be justified, documented, and reasonable, and its legal and material elements should be stated. Verdicts without any causation do not mean anything and are rarely issued; however, there are several instances in which the verdict is issued incompletely or defectively. Given the scanty legal literature on causation defects in Iran, the present descriptive-analytic study compares and contrasts the laws of Iran and other countries to examine court and quasi-judicial verdicts. This study introduces the defects of causation along with its implementation guarantee. In addition, it examines the most important examples of causation. To this end, the current study investigates how this principle is used in the Iranian legal system. Fundamental causation defects of a verdict can invalidate it although the passed laws do not explicitly state this opinion. The findings indicate that causation invalidation could be considered as a judicial invalidation since evaluation authorities, e.g., appeal courts, the supreme court, and the administrative court of justice, are responsible for detecting fundamental detects.

The marriage contract is the initial step in forming a family. Therefore, it is particularly important to scrutinize prenuptial conditions. One such condition pertains to abstaining from vaginal penetration. This article delves into the legal status of this condition and guarantees its fulfillment. Given that the condition is not explicitly outlined in current Iranian laws, Article 167 of the Constitution and Article 3 of the Civil Procedure suggest that judges should refer to valid Islamic jurisprudential sources for guidance. Jurists exhibit divergent views on this condition, rooted in disparities regarding the nature and requisites of marriage. Employing an analytical-descriptive approach and sourcing information from the library, this research critiques various perspectives. It concludes that, since sexual intercourse is not inherently demanded by the nature of marriage, the condition of no vaginal penetration is valid. The guarantee for this condition lies in its obligatory prohibition, and its positive assurance is indemnity in lieu of defloration (arsh al-bikāra).

The important role of waqf (endowment) in religious, moral, cultural, social and economic issues has made it one of the basic jurisprudential issues. The endowment is dividable in different aspects. One of its division is in respect of time. Waqf in terms of time is either absolute or limited. The validity of absolute waqf is accepted by all jurists, but time-bound waqf has not been accepted by majority, although some, not a few, have accepted its validity. The purpose of this article is to examine the question of whether the reasons for the condition of the eternity of waqf can prove this condition, and as a result, the time-bound waqf becomes invalid, or not? After a brief explanation of the temporary and eternal endowment, this study evaluates the reasons for the condition of eternity of endowment in a descriptive-analytical manner and follows the hypothesis that these reasons not only do not limit the validity of the endowment to the eternal endowment. Rather, by reviewing the truth of the endowment and explaining the reasons for the theory of the validity of the temporary endowment, its correctness can be strengthened. Proving the validity of this type of endowment has many fruits that guarantee the necessity of this discussion.

According to Article 391 of the Civil Code and the unified judgments 733-1393/07/15 and 811-1400/01/04 of the General Board of the Supreme Court, if the sold things has been determined as belonging to another, the sale contract is null. Therefore in case of unawareness of the buyer, the vendor must pay the difference through price which is paid as consideration and the actual value of the sold object on the day of sale as compensation in addition to returning the price. The apparent interpretation of the aforementioned provisions limits them to the nullity of the sale contract due to unauthorization regarding the owner's rejection. But firstly it’s good to know that nullity causes damages in other types of contracts rather than sales. Then it should be known that nullity can be caused by reasons differing from the cause of belonging to a third party. Thirdly, must be said that the contract may cause damages not in terms of nullity, but in other types of dissolution. This research aims to answer the question whether it is possible to apply the provisions related to the damage caused by the nullity of unauthorized sale to other cases of nullity and dissolution of all contracts or not? And assuming the answer to the previous question is positive, what are the examples of the implementation of the aforementioned provisions? The collection of information in this research is library-based and the method of presenting is analytical.

In the current world of international trade, corruption in the form of various instances, including bribery, is very common and is accompanied by very serious damage to the economies of the countries involved. This issue has not only caused the countries of the world to put prevention and fight against this phenomenon on their agenda, but also the international community has not been idle and has taken measures such as drafting several international documents. This emphasizes on the strength of the law as a tool in preventing and combating corruption. But unfortunately, it has not been used all the capacities of it such as private dimension. This is while there seems to be a relation between a country s purity rating and the guarantee of law enforcement it uses in the face of a contracts provided by corruption. With this premise, in this article, we will use the library method to answer the question of whether guaranteeing the annulment of these contracts can lead to a reduction in corruption.

To identify the subject of this Article, the pure defense first must be separated from hybrid counterclaim. Hybrid counter claim has a dual function: the first aim of this claim is to reject the adversary claim. On the other hand, as similar as the pure counterclaim, it renders a claim, out of the object of principal claim. In Iranian Law, some proving criteria have been rendered by legal writers to distinguish these two judicial acts. In these theories the probative value of the defendant’s documents, determine the necessity of filing a counterclaim. Upon analysis of this paper, the proving criteria in theory and practice are not convincing for distinction of counterclaim from merit defense. Criterion accepted in this Article is that in counterclaim, the defendant claim to get a profit other than mere reject of adversary’s claim. In spite of apparent simplicity of this criterion of distinction of counterclaim from merit defense, its practical application is not without complexity.

In this article, the effect of the nullity and termination of the original contract on the condition stipulated in it has been examined through a study of Iranian and comparative law with emphasis on Imami jurisprudence. The purpose of the present study is to delineate a rule for a condition which is independent from a contract, and we were faced with the question of whether the condition in any case follows the contract in the stage of formation and continuance, ie, is invalidated by its annulment and terminated by its termination. We concluded that the condition in the stage of contract formation is basically subject to the contract and as a result the "nullity of a contract having a condition" causes the invalidation of a condition, except in cases where it is understood from the intention of both parties that they believe in the independence of the condition and want it to exist regardless of the contract. For this reason, the clause concerning arbitration and preservation of secrets is valid even if one assumes that the contract is void. In addition, contrary to the apparaet meaning of Article 246 of the Civil Code, "termination of a contract that contains a stipulation" does not lead to the termination of a condition, except in cases where a condition does not have the capacity to be separated from a contract, such as `a condition regarding a specific quality or quantity or an ancillary contract, such as mortgage and guarantee in the form of a condition stipulated in a contract or if it is clear from the intention of the parties that they have made the condition subject to the original contract in terms of permanence and durability. Therefore, the aforementioned article should be considered only as the effect of the termination of the contract on the condition stipulated therin and limited to an inseparable and ancillary condition.

Option of condition, the subject of Article 399 of Civil Law is in the cases that for each of the purchaser or customer or both of them or third person is given authority of  termination of transaction in the determined term and if this condition  is being without term, based on Article 401 of Civil Law, its execution guaranty is invalidity of condition and contract. In some of the contracts , it is inserted that if this contract after agreeing  and signing to any reason, each of the parties cancel the contract,  an amount as loss is paid, regard validity of authenticity or voiding of such condition between Doctrine and jurisprudence,  there is  subjective of belief and procedure that in this case, it  seems unlimited option of condition has not been determined but, it has been mentioned and if cancellation to any reason, this rate of loss is obtained by the parties and the mentioning to the termination is limited to legal options or contractual option. Also, in the cases that the parties make the contract of option of conditions for their life period or third person, there is disagreement and Civil law hasn’t made an explicit sentence in this regard that in this paper, additional to analysis of viewpoint of opponents and supporters, the preferred opinion will be discussed proportional to legal and jurisprudential principles and judgmental procedure.

The explicit meaning of the binding precedent No. 810, dated 2021-05-25, rendered by General Board of the Supreme Court is that if multiple transactions are subsequently concluded on a real estate and the initial  transaction is discharged by applying an option to terminate a contract due to violation of an agreed-upon condition (failure to pay the price installments within the stipulated dates), the first seller may terminate the initial contract and return the real estate from the next sellers on the grounds of the existence of an implied condition that the real estate remains with the seller and is not transferred to someone else, by operation of custom which is part of a contract and deemed as a condition mentioned in a contract, and because the buyer is actually or presumably aware of the right of option to cancel the contract and the possibility of returning the real estate to the seller. From the argument contained in the judgment and its contrario argument, it is understood that if the initial  contract was verbal and there was no possibility of informing the buyer of an option to terminate a contract due to violation of an agreed-upon condition or that it is possible to terminate the contract due to violation of agreed-upon condition or after concluding the initial  contract, in the form of an independent agreement or a clause added to a contract without it being stated in the initial contract, the dissolution of the initial  contract does not affect the subsequent contracts. However, mutual consent to terminate the initial contract does not invalidate subsequent ones. Also, the content of the binding precedent does not exclusively apply to "sale contract" and "an option to terminate a contract due to violation of an agreed-upon condition," rather, it is applicable to "all transactions" and "all options to terminate a transaction based on contracts" as well as to the case of "resolutory condition";  However, in options to terminate a contract based on law, the dissolution of the initial contract does not invalidate or automatically terminate the subsequent ones; A result that many Imami jurists and certain legal experts have confirmed, and it is also understood from the criteria of scattered articles of the Civil Act. In addition, although in the decision of binding precedent, the status of subsequent transactions in case of dissolution of the initial contract is not specified, in case there are options to terminate a transaction based on contracts, the subsequent transactions should be considered subject to observing the rights of others, and in case the initial contract is dissolved subsequent contracts become void from the time the first seller rejects the contract.

The implication of prohibition for the contract corruption is one of the issues in which the Islamic jurists do not have a single opinion. The disagreement in this issue has significant jurisprudential effects. Amedi, one of the most famous theologians, same as the majority of Islamic jurists, believes that if prohibition belongs to the essence of the contract or its necessary description, the prohibition means corruption of contract. However, if it belongs to an external description, it does not have such an implication. Contrary to most proponents of this view, who consider the basis of corruption to be lexical, Amedi, citing some theological principles and rational and lexical arguments, considers the basis of corruption to be reason and concept. Sharif Al-Murtadha, one of the forerunners of the Imamiyya, believes that the prohibition itself does not imply corruption of contract, and the claim of corruption requires the external evidence. However, in the Shari‘a prohibitions, there is a principle called the custom of Shari‘a, which implies corruption, unless proven otherwise. Sharif Al-Murtadha’s main bases are rational and lexical arguments. There are also signs of theological foundations in his view. The absolute implication of the prohibition for corruption and the promise of the difference between invalidity and corruption are two other views, each of which has its supporters. The most justified view in this regard seems to be the view of those who believe in the literal meaning of the prohibition of corruption if it belongs to the essence or the necessary description of the contract. This view is mostly in accordance with religious and lexical arguments and rational and customary requirements.

Based on the legal status of a cotract, it may be subject to one of the following conditions: validity, invalidity, corruption, non-existence, non-influence. Some of these legal situations may turn into new situations; Among other things, if a valid contract is annulled by the judgment of a judicial authority, it means that it becomes a void contract. In French law, judicial annulment is accepted as a general rule (with one exception) in cases where the legal action is subject to the status of nullity (both absolute and relative); However, in Iranian law, there is no such necessity in invalid legal acts, and in general, the annulment of a valid legal act by the judgment of a judicial authority is considered an exceptional matter, and it is realized only in cases of future property and annulment of official documents. Therefore, with a comparative study of the two legal systems of Iran and France, we will find that although the institution of "judicial annulment" is the same in nature in both systems and as a result, some of its effects are common, but the difference in the examples has caused specific effects, the most important of which is the regressive effect of judicial annulment in French law, while in Iranian law, the annulment effect looks to the future and does not spread to the past.

Proviso is one of applied topics and it is very common in our society. As one of its types, negative condition is divided into two groups of material and legal. Regarding a legal negative condition, a person who is responsible to perform a condition undertakes contractually not to perform one of the obligations - a contract or unilateral obligation. One very important question which arises here is that, if the person who is responsible to perform a condition violates their obligation, and in legal terms, if they perform a negative condition, what would be the jurisdictional or judicial order for the transaction or for that violation? There is disagreement between the jurisprudents and lawyers in this regard. Some considers the transaction violating the condition as valid and also consider the person in whose favor the condition is made a right to claim compensation; on the other hand, some consider such a transaction as invalid; and, some regard such a condition as invalid. Some of jurisprudents and lawyers consider a transaction which violates negative condition as invalid; and, finally, some regard it as unopposable. Our hypothesis is that, it depends on the negative condition which is violated. In other words, if the obligation is to perform a unilateral obligation such as cancellation, the transaction violating the condition is invalid; but, if the undertaking is the omission of an act, the transaction violating the condition is considered as to be in the observation state.

Administrative Contracts qualify mandatory and warranted legal forms which follow some specific rules and procedures. However, failure to comply with the procedures may cover various performances. The main question which is intended in this paper is that to what extent is the issue of invalidity of administrative contracts in Iran conforms to the general rules of civil contracts, and what are the differences with them? Reflection on legal materials and articles, legal acts and legal doctrine, can lead to the conclusion that administrative contracts in a invalidity state does not merely guarantee void execution, but due to collecting administrations’ interests and individuals’ rights a specific situation which can be correct and void is considered. In some cases, so as to guarantee the rights of individuals, the contract is to the extent that it compensates for damage, has a credit. This claim referring to Article 92 of the Public Calculation Law and Clause 1 of Article 4 of the Regulations on the Implementation of the Statute of the Constitutional Court of the Complaints Board has been proven.

The family is the first and most important institution of society, which reinforces the common values of every society and the most important foundation for the protection and protection of those values. The purpose of this research is to investigate the deterioration of marriage due to the change of gender of the couple. This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles. As a general rule, it can be stated that in contracts and legal acts where the type of gender has no effect on legal rights, gender change also has no legal effect. However, in contracts where the gender of the person is decisive, such as marriage, with the change of gender, it undergoes change and different rulings and effects follow.Ethical Considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed. The theory of Involuntary termination in gender change is correct and based on it, the marriage contract is valid from the time of conclusion until the time of gender change, and it is forcibly dissolved from the time of gender change.

In recent decades, arbitration has emerged as an effective method for the peaceful settlement of international disputes. However, the dominance of national courts over the arbitration process, as well as its rulings, remains strong. Recognition of the right to challenge the arbitrator's award in international instruments such as the ICSID Arbitration Convention and the International Commercial Arbitration Law in the Iranian legal system is the most important manifestation of national courts' oversight of the arbitration process; However, support for the arbitration process requires that the grounds for objection be as minimal as possible. Explaining Evaluating the effects on them seems inevitable. The descriptive-analytical study of this issue confirms that the non-substantial intervention of the national courts as well as the non-extraterritorial implementation of the annulled arbitral award are the most important effects on the objection to foreign and international arbitral awards. Regarding the aspects (cases) of annulment of foreign and international arbitrations, it should be said that the development of these aspects in the Iranian legal system - which is reflected in the cases of annulment and invalidity of the award in the International Commercial Arbitration Law - is a serious threat to development. Optimal arbitration and its institutionalization in the field of social, economic and international relations, which requires the determination of the country's legislator to make reforms in this legal establishment.

According to the civil code, the right of pre-emption does not prohibit the purchaser from performing any proprietary act on the purchased share. However, Article 816 of civil code, states that the exercise of this right void the transactions of the purchaser in respect of the subject of pre-emption. According to the fact that the correctness of the contract from the beginning and its nullity after exercising the pre-emption right is exceptional in our law, it is necessary to determine its interpretation and principle by investigating the juridical literature of the issue in order to answer the essential questions that may rise on this issue. First, what is the condition of the proprietary right of the purchaser before and after the exercise of the pre-emption based on? Is the nullity of the contract in Article 816 of civil code used in its real meaning? If the right of pre-emption on the subject of pre-emption belongs to shafi, why will this right not prevent the purchaser from doing the proprietary act on the subject of sale? There are several points of views from lowers and jurisconsult in this regard such as nullity, voidable, being observed, cancelation and non-opposability. But the bases of these views are not determined. In the present study, after analyzing and criticizing the present views, we concluded that the right of pre-emption on the subject of sale belongs to shafi, but the sale of it by the purchaser is valid. Because the transition of the subject of sale doesn’t defect the right of pre-emption and the exercise of the right of pre-emption will cancel the sale and this rule is more compatible with the two parties of the sale and the real correctness of the contract.

Contract is one of the means of creating an obligation, and depending on its nature, the subject of the obligation may be the transfer or delivery of the same goods, provision of services, performance or omission of a deed or revocation of rights. By fulfilling the obligation voluntarily, the expected result of the parties is obtained from the conclusion of the contract. Sometimes it happens that after concluding the contract correctly and the contractors commit to the obligations arising from the contract, events occur that make it impossible to fulfill the contractual obligations. It is also clear that the commitment to the impossible affair is an irrational and futile commitment and is legally invalid. As a result, it is reprehensible for contractors to adhere to a contract on the assumption that it is impossible to enforce it. In the statute law, the impossibility and the reason for impossibility of executing the contract and non-fulfillment of the obligations arising from it, should not invoke the obligor and it is outside his authority, otherwise the obligor is still responsible for non-fulfillment of the contract. In jurisprudence, a rule has been stated under the title of "invalidity of the whole contract with the impossibility of fulfillment in content", and it does not matter whether the impossibility of fulfillment of the contract is from one of the parties or from both parties. This rule expresses the concept that if after concluding the contract, it is impossible to fulfill the obligations arising from the contract forever, the execution of the content of the contract and its obligations is not necessary and the transaction is void and there is no difference between contracts and this rule in all contracts. Even licenses will be valid. Iranian law has dealt with this in Articles 227 and 229 of the Civil Code, and there are conditions for fulfilling impossibility for the performance of the contract, without which they cannot rely on this rule. Obviously, assuming the necessary conditions for the fulfillment of the obligation are fulfilled, the parties will be released from fulfilling the obligations.

According to the legal vacuum in retroactive and no retroactive effects of nullity in the labor contract, this article examines the views on this topic and identifies the effects of each in a descriptive, analytical and comparative approach. The result was that one could deduce the legislative to nullity the contract in accordance with the general contract rules. In French, German, Italian, and Luxembourg law, the no retroactive effect of nullity has been accepted because of pay and its fringe benefit to the worker. In this article, the same result has been achieved in our rights to the rules of "liability of usurper" and "Ma Yozman". But in cases where nullity is with bad faith (such as the nullity caused by the wrongdoing of the employer in the personality of the worker and an illicit contract), because of prohibiting the use of bad faith people with legal protections and contrary to public policy, a labor contract cannot create such benefits for them. Regarding labor imperative regulations as mentioned in the laws of foreign countries and in our labor law, some of those cases have been criminalized. In any case, even with the cancellation of the contract, their compliance is mandatory.