جستجوی مقالات مرتبط با کلیدواژه « Condition of omission » در نشریات گروه « فقه و حقوق »

The civil law has not taken any action regarding the sanctity of the condition of legal omission, and this has caused a difference of opinion among the jurists. Some have commented on the annulment, some on the validity, and others on the invalidity of the legal act of impermissible (forbidden) act. This research tries to strengthen the recent theory and for this purpose, suggests the theory of arbitrary (contractual, credit) coercion. According to this theory, the sanction of the person who is responsible to perform a condition which is against him (Arabic: مشروط علیه) and he/she violated that condition in this type of condition, according to the primary rule is compelling and the impossibility of the coercion (compelling) of the person who is responsible to perform a condition is not imagined; because, the coercion (compelling) of the person who is responsible to perform a condition is arbitrary (contractual), which means that the legal act of impermissible (forbidden) act is concluded in a contractual way. In other words, coercion must be of the form of the desired act, and since the mentioned act is arbitrary (contractual, credit), the manner of coercion must also be arbitrary. This coercion (compulsion) without the need to perform any material or legal action is done spontaneously. Coercion has been realized, when, there is no effect legally on the person who is responsible to perform a condition which is against him and promised it, and there is no need for any further action. Accepting the validity of the forbidden legal act, in addition to the inconsistency with the intention of the parties, means the permission to the breach of contract and the effective termination of the contract. The theory of nullity is also incompatible with the foundations of our legal system.

Content of the contracts and the conditions set within them are binding and there is no difference between the condition of action and condition of omission in this respect. As we can force the condition through some requirements to refrain from violation of the condition of action (condition of omission) and this case should not be doubted; however, the question is raised as to what is the judgment of possession of counter-condition in terms of effectiveness or non-effectiveness? Is the possession of conveyor or the possession that considers the object of transaction or condition to belong to a third party an invalid possession the possession of suspension, or the possession of effectiveness? In this brief account we narrate and criticize the reasoning of well-known experts who believe the possessions of counter-conditions are absolutely invalid and explain the reasons put forth by the jurisprudents who consider the transaction to be valid only with the presumption of adhesion of permission of the conditioner, we later provide the reasons by the jurisprudents who do not consider the validity of the counter-condition possessions to require the adhesion of permission, and in the final judgment between the recent two groups of jurisprudents we have chosen the opinion of those well-known experts who consider the possessions of counter-conditions to be valid only with the adhesion of permission.