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

The legal status of transactions that contradict negative result conditions (the consequences of negative result conditions) is an issue that has received limited attention in Islamic jurisprudence and Iranian law. Jurists and legal scholars have proposed four theories regarding the legal status of transactions conflicting with negative result conditions: the invalidity of the conflicting transaction, the non-enforceability of the conflicting transaction, the potential for the conflicting transaction to be annulled, and a distinction between unilateral acts and contracts (invalidity in contracts and non-enforceability regarding the conditional beneficiary in unilateral acts). The authors contend that a distinction should be made between the unilateral waiver of legal effects (unilateral acts) and the waiver of such effects within the framework of a bilateral contract. In the former, because the individual has irrevocably waived the legal effect, the conflicting transaction is invalid; however, in the latter, since the waiver is contingent upon the will of the conditional beneficiary, they may choose to forgo it and restore the legal effect to the conditional obligor. Thus, the conflicting transaction should be considered non-enforceable and subject to the approval of the conditional beneficiary. Finally, a comparison is made between the consequences of negative result conditions and negative action conditions, demonstrating that, despite differences in their content, they share the same legal ruling in the context of conflicting transactionsIn conclusion, a comparative analysis between the guarantee of executing a negative outcome condition and the legal negative condition reveals that despite differences in content, they share a consistent legal ruling in the context of contradictory transactions.Key words: opposite Transactions, sanction, negative result condition, nullity, invalidity,

In the current legal system of Iran, although the contract is one of the most important tools of the government in the administration of affairs, but due to the difference between the governing principles of government contracts and private contracts, a different legal system has been provided for government contracts. The difference between the legal system governing government contracts and private contracts is the difference in the principles governing these contracts. One of the most important principles governing government contracts is the principle of formality in concluding these contracts. Based on this principle, the mere consent of the parties and request and acceptance is not enough for the conclusion of government contracts, but according to the law, certain formalities before, during and after the conclusion are foreseen for government contracts. The need to systematize the stages of the contract is one of the most recent formalities foreseen for the conclusion of government contracts. The meaning of this principle is that all stages of concluding government contracts must be done in the system of registration, notification and through the electronic system. The question that exists regarding all formalities of government contracts in general and the need to systematize these transactions in a particular way is what effect does non-observance of these formalities have on the concluded contract? Examining this issue in Iran's legal system showed that from a legal point of view, if these formalities are not followed as prior formalities, it provides the possibility of terminating the contract. However, if the registration in the system is not followed as a later formality, it has no effect on the validity of the concluded contract.

In the Iranian legal system, transactions involving foreign currencies have consistently been subject to governmental supervision and legislative scrutiny. This is due to the intrinsic relationship between foreign currencies and the value of the national currency, as well as their impact on matters of export and import. A further factor is the desire of the general public to invest in foreign currencies in Iran. This is motivated by a desire to maintain the value of their money, which is achieved by purchasing and holding foreign currencies, or by engaging in currency speculation and brokering. So many regulations have been passed regarding currency transactions including: circulars and monetary-banking regulations; Acts regarding the terms and conditions of foreign currency transaction; method of currency's price discovering; competent institutions; maximum volume of permitted exchangeable currencies, etc. The last legislative step regarding currency transactions in Iran, is the amendment Act of the "Combating Goods and Currency Smuggling Act" enacted on 1 January 2022. In these regulations, some requirements and formalities are prescribed for concluding and validating foreign currencies transactions. In the meantime, two legal descriptions of currency transactions are subject of this article: "Solemn", and "Real" description. So, we should examine that if these legal formalities make the currency transactions as a solemn contract? And moreover, is the "Delivery", a condition for validity of the currency transactions, and therefore it should be considered as a real contract?The method of this research is library and documentary, and the research approach is descriptive and analytical. Materials, includes Acts and regulations, as well as legal theories. The technical analysis will also refer to the legal principles and rules, including the general principles of contracts, as well as analogy and induction, and logical interpretation.The research plan will commence with an explanation of the concept of foreign currency and currency transactions. This will be followed by a separate analysis of each objective and formal statutory condition for concluding such a transaction, based on legal regulations and theories, as well as principles and rules. Thereafter, the legal description will be discussed, and finally, the research proposal will be presented.The research questions are: what formalities are prescribed in Iranian law, and especially in the latest legal amendments, for conducting currency transactions? Are the formalities as such a way that currency transactions become a solemn contract? Is the delivery a condition for the validity of such transactions and therefore currency transactions should be considered as a real contract? Assuming these two descriptions, what are the effects of them? And finally, whether these two works reasonable, acceptable and enforceable in Iran's current legal system or not?It seems that in the current Iran's legal system, and considering the set of foreign currency regulations and especially the recent amendments in the "Combating Goods and Currency Smuggling Act ", currency transactions should be considered as both solemn and real contract. As in the aforementioned Act, at the first, foreign currency transactions must be done with the intervention of imposed intermediary institutions; i.e. Banks and Exchanges and Financial & Credit Institutions (Paragraph (C) of the Supplementary Article 2 bis), that is considered a form of imposition on the contract parties, which is against the consensual principle. Also, it is necessary to register currency transactions in some governmental "Currency Registration Systems" (Paragraph (F) of Supplementary Article 2 bis), which is also an unusual formality for concluding a contract. Secondly, from the point of view of real contracts, not only currency transactions are a type of "Bay al-Sarf" (the classic contract for exchanging the gold and silver against each other, or exchanging the money for money) which is an obvious example of real contracts in Iran (Article 346 of the Civil Code); the Act of Combating Goods and Currency Smuggling, considers the delivery of currency, as an essential factor in all currency transactions (Paragraph (D) of the Supplementary Article 2 bis). Based on this definition, not only the statutory formalities in currency transactions are as legal condition for their concluding, and therefore in case of non-compliance with these formalities, the transaction should be considered "Null"; the delivery is also a condition for validity of the contract. Moreover, the mechanism of currency's ownership proof has changed. So, despite the fact that currency is movable property, in many cases, possession does not prove the holder's ownership; Rather, proving the ownership will require the registration's receipt in the governmental currency systems (Paragraph (G) of the Supplementary Article 2 bis). Also, the ownership of currencies which have been obtained before or after the recent amendments Act, is subjected to two different types of proving mechanisms (Paragraph (H) of the Supplementary Article 2 bis): based on possession (old system), and based on governmental currency system's receipts (new system), which theoretically and practically, contains many difficulties. Finally, despite what said as a rule about the nullity of currency transactions without complying the statutory formalities, it seems that the "inopposabilité" (non-invocability, i.e. the contract is valid between its parties on one hand, and is invalid to the government and other third parties on the other hand), is fairer, more efficient, and more compatible with the practical position of foreign currencies in Iran, and therefore it is suggested to the legal doctrine, judicial precedent, and legislator.

The 1980 Vienna Convention on the International Sale of Goods, which was approved and implemented without the intention of interfering with the internal laws of countries due to integration based on the principle of freedom of contracts, by prescribing the possibility of waiving all or part of this protocol on business transactions; In the foundation of Iran's laws, especially in the discussion of purchase, it faces a conflict, which is the uncertainty of the price under Article 55. This conflict, which is one of the reasons for Iran's non-adherence to this protocol, has raised many questions at the world level, along with Article 14. The way of determining the contract price is different in the countries and it is correct that this matter should be investigated and decided in the legal system and laws of the countries and not under the convention. The need for the price to be clear and certain in the Iranian civil law, which is based on the thinking of the Imami jurists, has also been accepted in this document, and basically, there is no conflict between the aforementioned contract and the domestic law, and it is possible to distinguish the appearance of this document from the legal standards. He resolved the domestic issue by referring to a correct and proper interpretation of the word "gharar", the correct analysis of the turn of articles 14 and 55 of this document and also paying attention to the distinction of legal systems in the world and she confirmed the validity of this category of transactions.

One of the issues raised under the topics of "ijtihād and taqlīd" is the invalidity of an obligatory act in the absence of taqlīd and caution, which almost all Shi'a jurists believe is invalid. The need to address this issue is because a person, after years of acting without imitation and caution, decides to perform actions with imitation of a mujtahid or caution from then on. Now, if his past deeds are invalid, he will suffer a lot of hardship to make up for his past deeds. In this article, in an analytical-descriptive method and citing library sources, the theories and arguments of Shi'a jurists have been criticized, and the basic question has been answered that, "in the case of action without imitation and caution, are all the past actions of the obligee (mukallaf) are considered void and should be made up for?" "And what is the criterion of the validity or invalidity of such a person's action the opinion of the mujtahid during the action or during the recourse?" By examining the evidence, it has been concluded that if such an action is in accordance with the facts or in accordance with the opinion of one of the two mujtahids during the action and during the reference (valid evidence), it is permissible and valid and does not require the compensation of past actions.

Although the arbitration award is issued by the parties' chosen persons, there is a possibility of protesting it by the litigants who consider it unfair or by third parties whose rights are affected by the award. Regarding the ways in which it is possible to object to the arbitration award, the Civil Procedure Law provides for seven cases in Article 489, in each of which the arbitrator's award is invalid and unenforceable. Basically, the arbitration award is annulled. or implemented. As a result, the competent court's decision to annul or confirm the contested decision will be challenged, and the competent court is prohibited from entering into the nature of the claim and dealing with it. However, the contractual nature of arbitration does not prevent the arbitrator's decision from being enforceable in any form and quality. Courts will rule on the annulment of the arbitration award only if the applicant's request for annulment is justified. Nevertheless, it should be seen if the proceedings of the courts are limited to the cases specified in Article 489 or if there are other reasons for annulment of the arbitrator's decision, and if they are verified, a judgment can be issued to annul the arbitrator's decision. Examining and thinking about these matters is the main topic of this article.

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.

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.

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.

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.