جستجوی مقالات مرتبط با کلیدواژه « contract dissolution » در نشریات گروه « فقه و حقوق »

The conditions surrounding the transfer of ownership can include priority or delay, either from the contract's inception or its dissolution, indicating a retroactive impact. This article explores the validity of such conditions within domestic law and the legal frameworks of various countries. In the context of Iranian law, support for the validity of these conditions can be found in instances of violating the causal and consequential rule in financial and legal matters. Additionally, common sense and the perspectives of renowned jurists align with the notion that such conditions do not contradict Sharia.   The priority condition for transferring ownership from the contract's dissolution (retroactive condition) is widely accepted in legal systems. Fundamentally, this condition is akin to prioritizing ownership transfer from the contract's inception. If the latter is deemed valid, the former should be as well. Concerning delayed ownership transfer, if the transfer is pending, it is considered a form of suspension, which is generally deemed acceptable. In cases where ownership transfer is suspended for a specific duration, known as postponement, and if permanence is not a fundamental ownership condition, this condition is typically deemed unproblematic.

In this article, the conditions and effects of the force majeure in the amendments to the French Civil Code adopted in 2016, in order to use the solutions of the French legislature to eliminate the shortcomings of the Iranian legal system have been studied by descriptive-analytical research method. The main question is what are the conditions and characteristics of the force majeure and what is the criterion for distinguishing them, either personal or relative, and what effect does force majeure have on contracts, contractual obligations and contractual liability? A comparative study of Iranian and French law shows that the inevitability (impossibility of eliminating and repelling the accident) and the unpredictability of the accident, with a kind of relative criterion, and also the impossibility of executing the contract, with an objective criterion, are conditions for the realization of force majeure; But the externality of the accident is not an independent condition and refers to the same impossibility of preventing the accident (not being avoidable). Also, contrary to French law, the Iranian legislature did not anticipate the effects of the force majeure on the contract itself and the contractual obligations, and the effect of force majeure on contractual liability was also incompletely stated, which has led to differences between judicial decisions. Therefore, it is suggested that the legislator, in the form of a Civil Act amendment plan, in Article 227 stipulates the conditions for the realization (characteristics and criteria of distinction) of force majeure and in Article 229, the effects of force majeure on the contract and contractual obligations and compensation for non-implementation or Specify the delay in fulfilling the obligation.

The principle of maintaining contracts is one of the initiatives of Prof. Jafari Langroudi, who is in a position to state that the custom of habit requires that a broken or violated contract be maintained and repaired. The scope of the principle of contract maintaining is wider than similar institutions such as the pacta sunt servanda (principle of necessity), principle of correctness and the theory of contract management. It includes the stages of conciliation, the execution of contracts and options, even unilateral legal acts and revocable contracts. The theory of contract maintaining seems useful in that it has a general scope and includes instances that are not covered by other legal institutions and rules. The civil law has also chosen a solution that is in line with the principle of retaining contracts; Such as option in sales unfulfilled in part and option of unfulfilled conditions. However, there are several cases in which the legislator and jurists have chosen different methods and strategies and should reflect on the effects of this principle and its compliance with civil law, the economic results of maintaining contracts and their acceptance by custom.