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

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.

According to articles 550 & 552 of civil law, bailment of capital is revocable contract. Rule of civil law about absolute bailment of capital is correct, but it is discussable about delayed bailment of capital. Regardless of whether existing practical necessities, doesn’t accept this notion, The subject is theoretically controversial. One of the law's solutions to solve the problem is, inserting revocable contract in binding contract But this notion was not relief the problem completely.
It is necessary to consider the basis of frustration of contracts after death or incapacity of parties. Since most lawyers considered basis of article 954 civil law in permissible contracts, believe that it isn’t possible to convert permissible contracts to binding contract. They are revocable contract, even if insert in binding contract and they will dissolve with death or incapacity of parties. Therefore it is necessary to be checked, whether frustration of contracts through death or incapacity of parties is essential characteristic of revocable contracts? In other word every contract that be dissolved with death or incapacity of parties is revocable contract or it is a separate matter, isn’t depend to irrevocability and revocability of contracts. In my opinion any where parties personality is essential, it will dissolved by death or incapacity, whether the contract is revocable or irrevocable. The purpose of this article is answer to this question that if with respect to principle of freedom of contracts, it is possible that convert bailment of capital and other permissible contracts to binding contract or not.