جستجوی مقالات مرتبط با کلیدواژه "تلف مبیع قبل از قبض" در نشریات گروه "فقه و حقوق"

According to Article 387 of the Civil Code; if a specific object is lost before delivery and without the fault or negligence of the seller, the contract is void and the contractual price is returned to the buyer. While Article 362(1) of the Civil Procedure Code and Article 46 of the Law on the Execution of Civil Verdicts express that in case of loss of the object before delivery, it is possible to claim its actual price. This research presents a comprehensive method related to the determination of the rules governing the loss of specific goods at different stages. As a result, the termination of the sale in case of loss of the specific goods before delivery is conditional on the seller not being at fault and filing a lawsuit against the seller for the delivery if the plaintiff’ claim is valid, the seller’ fault is assumed. Therefore, if the loss of objects is in the stage of execution of the verdict, its actual price will be collected. In addition, although according to Article 362 of the Civil procedure Code, the new claim can’ be brought in the appeal, paragraph 1 of this article doesn’ consider the demand for the condemned price, which was the same as the subject of the original decision, as a new claim. Also, since no reason can be found to distinguish between the implementation of Article 362(1) in the district court and court of appeal, the provision of this paragraph at any time of judicial proceedings should be considered valid. In Conclusion; in case of loss of the specified object in each of these cases, the beneficiary can change the demand for its actual price and it will not be considered a new claim.

In the realm of financial transactions, the customary exchange of money serves as the foundation, aiming to satisfy the needs and requirements of each party involved. In this context, the mastery of rights by both buyers and sellers becomes imperative. However, situations may arise where, before the property is handed over to the buyer, it is destroyed due to unforeseeable events beyond the seller's control. In such cases, the transaction deviates from the parties' intentions and customary practices. If, during this transaction, the seller has already received payment, Article 387 of the Civil Code mandates the return of the funds to the buyer. This reimbursement is contingent on the non-transfer of the property that was originally part of the sale. Moreover, the goods being traded might possess inherent interests separate from the primary property, complicating the status of these additional interests. Article 387 of the Civil Code only addresses the seller's obligation to refund the transaction funds to the buyer, revolving around the concept of the "destruction of the object of sale before delivery." Nevertheless, this legal provision does not explicitly delineate the consequences of such annulment. As a result, a degree of ambiguity emerges when dealing with this scenario. Jurists, recognizing this gap in the law, have delved into this issue, seeking clarity and resolution. This matter has spurred extensive debates in both Imamiyyah and Sunni jurisprudence, leading to varying interpretations. Some scholars, in their attempt to explain the effects of annulment, have created an alternative rule known as "advantages and interests of an object follows the risk." This rule aims to mitigate the ambiguity surrounding the annulment of pledge agreements. Additionally, some scholars have posited that property ownership temporarily reverts to the seller, highlighting that during this brief period, the seller is obligated to refund the transaction amount. However, all these perspectives converge on the idea that the property ultimately belongs to the buyer, with the benefits and interests inextricably tied to the buyer's claim. This viewpoint contradicts the Shariah rule of "advantages and interests of an object follows the risk," a principle upheld by the Prophet of Islam, which places the responsibility for benefits and interests on both the buyer and the seller. It is important to note that the rule of "advantages and interests of an object follows the risk" is divinely ordained, whereas the rule of the "destruction of the object of sale before delivery" stems from scholarly interpretation. This stark contrast highlights a fundamental conflict in unassigned law: the ownership status of benefits. The preference for the sharia rule of "advantages and interests of an object follows the risk" over the rule of "destruction of the object of sale before delivery" dictates that the benefits continue to belong to the seller, aligned with the remaining property's ownership status. Furthermore, the acceptance of the rule of "advantages and interests of an object follows the risk" in relation to "commandite" has been acknowledged in civil law through extensive jurisprudential studies. Consequently, it has been established that adhering to the benefits guaranteed to each party in a properly executed agreement, where both parties maintain control over the property involved, is considered legally valid and representative. In conclusion, this research underscores the necessity of upholding the benefits guaranteed by the law, as clarified in articles 387 and 558 of the Civil Code. It establishes that the determination of benefits for each party in a contract hinges on the guarantee bestowed upon them, as defined by the explicit language of the law and jurisprudence. This theory posits that one benefits from the guarantee and bears the responsibility for any loss incurred in connection with the property. This novel theory, developed through extensive analysis of the Civil Code's articles, provides a unique perspective that has not been explored in previous legal studies.

The issue of Ownership transfer and loss of property before receipt is one of the issues in today's transactions that the study of its concept and on the Ownership transfer effects is necessary and this article this issue studies.

Thise article is Analytical descriptive and uses the library method.

In this article, Originality of texts, honesty and trusteeship Has been complied with.

In the sale, as soon as the contract occurs, the seller is the owner of the price and the customer is the owner of the seller. but according to rule of wasted object before taking, the seller loses the seller's property and not the customer's property. It is known as a seller The Ownership to the buyer as a result of the contract is transferred. But the exchange commutative warranty remains with the seller until cession is made.

The contract of sale, is a clear example of Proprietary contracts. Before cession, if the sale is lost, the seller must return the price for the lost property to the buyer has received. The presence of cucumber makes the commutative warranty even with cession not disappear. Therefore, the presence of cucumber in the contract of sale means that even with the surrender, the guarantee of the seller against the loss of the seller is not lost.