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

In everyday life, people undertake obligations in the form of conditions in a contract, one of the most important of which is the verb condition, which has many uses. According to the evidence of the conditions, it is obligatory for the defendant to comply with the provisions of the condition, but sometimes he may not fulfill his obligations and there is a violation of the condition of the act, and there are wide differences regarding the guarantee of its implementation. Therefore, the purpose of this research is to compare the guarantee of the implementation of the verb condition in Imami jurisprudence, Sunni jurisprudence and civil law. According to the famous Imami jurists, which has been followed by the civil law, the guarantee of the fulfillment of the condition of the act is primarily conditional coercion against the fulfillment of the obligation, and in case of excused coercion, there is a right of rescission, which today has limitations, but some believe that the right of coercion and the right of termination are contradictory, which has its supporters. Among Sunni jurisprudents, there are differences of opinion regarding the performance guarantee, some of them believe in the long-term theory of the performance guarantee, and some believe in the initial termination without the right of coercion.

hand, even some of the jurists, stating the accuracy of innominate contracts, did not consider these agreements under pactasuntservanda and proposed the aim of their stipulation for obtaining the irrevocability. Hence, the subject of conditions got rominent role in Iran’s law which follows Shiite jurisprudence and it was reflected under an independent chapter in Civil Code. The requirement of ss. 237, 238, and 239 of Civil Code is, if the breach of affirmative term happened, the innocent party cannot terminate the contract at first, but he only would have the coercion right to the other party; moreover, on the second step he could take measure to terminate the contract if the essential requirements met. It means that the remedy of coercion right and termination right are not in transversal relation. The major question is whether we cannot abjudicate to the transversal relation of the coercion right and termination right under the breach of term by considering the analysis of decisions, statements of jurists and legal writers, and the stage of terms in contract law i.e. can the person in whose favor the term made utilize the termination remedy as soon as the breach of term happens? It seems, the Shiite jurists has accepted this point of view by reference to the rational proof, principle of harm, and the basis of the analysis of implied term under the contract law.