جستجوی مقالات مرتبط با کلیدواژه "سوء استفاده از اضطرار" در نشریات گروه "فقه و حقوق"

If a person purchases a commodity at a higher price than normal or sells it at a significantly lower price than normal as a result of a personal event, such as a spouse's illness, or of a public catastrophe, such as an earthquake or flood, this event can be said to impose the price on him. Under the Iranian law, the critical question is: what is the legal status of contracts based on imposing the price? To address this topic, the authors conducted a positive (descriptive) substantive analysis on laws and regulations, materials from Islamic legal treatises, and legal opinions. Also, following the economic approach used in this study, the authors examined the legal validity of contracts based on the imposition of prices on distressed and crisis-stricken persons from a positive-normative economic perspective. This positive-normative approach is founded on the theory of price and the concept of economic efficiency, respectively. It should be noted that since the history of the economic debate on this matter predominantly comes predominantly from the American literature, this article needs to be comparative.In Iranian law, according to the predominant view of Shi’i Jurists, Article 206 of the Civil Code considers a transaction motivated by the party’s economic need to be valid. However, based on many pertinent articles, most notably Article 178 of the Maritime Law, some jurists have argued that this is an unfair transaction in which products or services are provided at excessive rates to, or at a lower price purchased from, the distressed party. Some held the contract to be voidable, some found it modifiable, and some considered it valid, though with an option for the distressed party to cancel it. However, based on the predominant view among Shi’i jurists and the express or implicit content of the pertinent rules of Iranian law, a contract motivated by a party’s economic need is valid unless it falls in the scope of the Maritime Law, the rule embodied in which cannot be extended to other contracts, or is deemed anti-competitive in the market, in which case it may be terminated by the Competition Council according to the paragraph 1 of Article 61 of the Law on the General Policies for the Implementation of Article 44 of the Islamic Republic's Constitution.In the US law, section 2-302 of the Uniform Commercial Code, on which most states have based their respective laws directly or implicitly, a contract based on the imposition of an unconscionable price on the distressed party is deemed changeable. Moreover, contracts based on the imposition of prices on individuals affected by catastrophic disasters and crises, such as floods and earthquakes, can be altered and the imposer will face criminal sanctions and financial penalties . It should be emphasized though that using criteria such as unfairness or unconscionability for altering this sort of transactions may be challenged due to their vagueness and incapability to produce objective, well-structured standard.It is also noteworthy that the rise or fall in the price of commodities or services in a widespread or uncommon emergency is reasonable from an economic standpoint, because such events, on the one hand, often impede the production, resulting in large supply reductions and, on the other, lead to dramatic rise in the consumer demand, particularly for certain products and services. According to the pricing mechanism, whenever a product's supply declines and its demand grows, its price will reach its maximum level. This price rise will encourage present and future manufacturers to expand their output, resulting in lower prices and increased consumer welfare. Furthermore, validating the discount sales of economically distressed parties may be an appropriate economic strategy in recessions. However, government interventions (by regulation) are often inefficient and ultimately detrimental to consumers and should thus be limited to cases when it is necessary for the maintenance of the market activity.

Imamiyah jurists and Iranian legal experts have divided contracts into valid and invalid in terms of their effect and often, classified the unauthorized contract under the valid contracts. Comparative studies in recent years have led to the emergence of a new circumstance as voidable contracts in Iranian law. These contracts are considered to be valid and operated by the parties but they are voidable due to reasons such as mistake, duress or operation. Referring to some articles of the Commercial Code and Sea Act, the legal experts though consider the relative refutation to be in contradiction with the general rules of contracts, have still accepted them as a necessary and new establishment in specific cases. The authors, studying the reasons of the relative nullity in common law and comparing it with similar cases in Iranian law through a descriptive-analytic method,  have concluded that there is no necessity for discussion of the voidable contracts in Iranian law, common law and Roman-German law and contrary to what is taken certain, the claimed extensions are in line with the general rules of the contracts related to the unauthorized contracts and are justified.

The developments of trade, economic liberalism, and, as a consequence, the appearance of economic powers, have introduced an intense difference between rich and poor classes. The opportunity of economic power bears the ability of exploiting poor classes. The need to food, treatment, and other essential needs like education and employment, forces weaker classes into contracts which in spite of being seemingly accompanied by free will, may look quite unequal and oppressive in the light of constraint.Imposing unequal economic contractual terms causes the fans of justice to react against unfairness. Although the constrained protection necessitates recognizing the contract he has entered into, if there is a suspicion of unfairness in a contract, the constrained protection can express itself in a different manner.The subjects of this article are the approaches of the constrained protection, equalizing the contract, and omitting unfair and oppressive terms. These are not indefensible in the thoughts of Muslim jurisprudents and the Iranian legislation system.