جستجوی مقالات مرتبط با کلیدواژه « object of sale » در نشریات گروه « فقه و حقوق »

Construction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one of the challenging and controversial issues is the repudiation (termination or cancellation) of construction partnering before the construction of pre-sale condominium and its impact on the pre-buyers of the condominium share. The view that considers the nature of the pre-sale contract in the contract of construction partnering as its common and traditional sense, with the effect of the issue of possessory of the contract of sale (Arabic: بیع, Bayʿ) and principles such as the principle of correctness (validity) and the principle of non- authorization of the impact of termination (repudiation) and at the same time, regardless of the nature and concomitants of the contract of construction partnering, believes that the subsequent termination does not affect the previous pre-sales. In contrast, according to the second point of view that considers the pre-sale of the builder’s share as a contractual and continuous covenant in the construction of condominium contract has different and specific elements than the common and term concept of sale (Arabic: بیع, Bayʿ) even with the knowing of ownership of all types of contracts of sale and considering the principle of mutual consent (agreement) and the structure of the construction partnering contract and complete dependence of the pre-sale contract on that contract with the termination of the partnering contract before its enforcement had been cancelled the possibility of delivery of the object of sale in the context of partnering contract as the mother and the basis of pre-sale contracts and pre-sale contracts are subjected into forcible automatic cancellation. This article has proved the second theory by explaining and analyzing the nature of the contract of construction partnering and its relationship with pre-sale contracts in the form of maternal-fetal attachment (MFA) and conditional contract and considering the principle of voluntarism (dominion of will or supremacy of will), and considers as a remover of some legal challenges of pre-sale apartment contracts resulting from construction partnering contract in Iran’s judicial precedent.

The contract of sale is one of the oldest and most common contracts in societies. This important contract has been signed by the holy legislator in the sacred Shari'ah of Islam and due to its customary nature, the jurists have provided definitions of it. By carefully reflection on most of the definitions it is understood to mean that the object of sale must be a concrete object, whereas nowadays properties that do not exist externally, such as digital currencies and various types of rights, including copyright, goodwill, etc., are commonly bought and sold. Examining the viewpoints of the jurists, it is clear that there is disagreement among the jurists regarding the obligation of the object of sale to be objective, and some of them have defined the sale as "transfer of possession" and others as "transfer of object". There is also disagreement in this regard in the opinions of lawyers. In the Quran and tradition, there is no mention to the necessity of the objectivity of the sold property. Also, no text has been found for this issue in jurisprudential sources, and earlier jurists have specified this condition based on the fatwas of other jurists. Although in 1928 AD the definition of the contract of sale was considered as a definition compatible with society and custom, but in the current period the arguments of the proponents of objectivity are unacceptable and subject to criticism and the term "object" should be removed from the definitions and a term compatible with the customary reality be replaced. According to the authors, this term is “property”, including concrete object, right, benefit, etc. This research has been done with a descriptive, analytical method based on library sources.

One of the conditions of the exchanged items is the liberty of object of sale; that means the customer can do any seizing ownership that he/she wants. A commodity that’s the object of transaction should not belong to another person; therefore some jurists added liberty of ownership condition to the conditions of the exchanged items. The acceptors of this condition applied some works and branches to it. Whether the liberty is an independent condition or not; whether the liberty of object of sale is the condition of the validity of object of sale or the one of the barriers of the effectiveness of sale, is a matter of controversy among the jurists. Some examples of non-liberty are the sale of the object pledged, the sale of endowment and shareholder’s equity in corporations, and the right of option and the person in whose favor the condition is made. In this research, the means and barriers of the liberty of property, independence of liberty of condition, the means of non-liberty of property is discussed form the viewpoint of Imam Khomeini, Sheikh Anṣārī and the statuary law. belonging of other’s right as a general principle prevents effectuation of the deal. And examples that the jurists have mentioned are confirmations of this rule without having any features. That is with the abolition of the feature in the mentioned cases one can generalize and develop it to the right of other in all cases, such as the right of shareholders in corporation; because what is meant by liberty of property is that its seizing is permissible for the owner and does not encounter with any barriers. Shares in limited companies are not free toward the company and company managers, and they are often free toward shareholders.

With the increasing population in industrial societies, including our country, the use of pre-sale contract mechanism for business and residential units has become widespread. However, this type of contract apparently lacks both fixed subject-matter due to the length of the construction process and fixed price due to fluctuations in the price of raw materials, the wages of workers and the acquisition of building permit, while the subject-matter and price must be fixed according to Iran law to prevent the grandson. Notwithstanding differences of opinion among Iranian scholars in this regard, is it possible to evaluate the nature and recognize the validity of the pre-sales contracts within the context of custom contracts? While the pre-sale law enacted in 2010 in order to regulate transactions and prevent fraudulent abuses, it does not make a reference to the nature of this type of contract. In this paper, the nature of this type of contract has been sought, from the point of view of Imamiyya jurisprudence and Iranian law and French civil code (Amendment 2016).

Because of sailing the estates by non-formal deeds; sometimes the estates of others are sailed without knowledge of the owner. So the dealing will be null by reject of the owner and the seller must amend the buyer’s damages. The main questions in this study are: what is the area of damages? What are the foundations of seller’s responsibility against the buyer? We will study the causality, exchange liability, and the theory of apparent as the foundations of seller’s responsibility. Then we will consider if the criterion of appointing the damages arising from differences between the prices and the real worth of the estate at the time of giving the price back, would be a subjective criterion (the worth of the estate being object of sail) or an objective one(the worth of the similar estates).

Nowadays financial rights such as goodwill and patent together with tangible properties and profits constitute a significant portion of assets and possibility of their transfer and exchange is demanded by the capital market. Undoubtedly، sale is an assumptive and most common tool for transferring properties among people. But، can we use this tool for transferring financial rights? Most jurists، with the argument that sale is appropriation of a tangible property against a consideration، believe that sale is just a tool for transferring tangible properties and hold that sale may not be used for transferring financial rights. Some of them، arguing that rights may not be held properties، even believe that financial rights cannot amount to consideration in sale. However، most contemporary jurists hold these arguments insufficient and believe that financial rights or waiving them can be held consideration in a sale. Even a few jurists such as late Imam Khomeini hold that right can be sold. It seems that in contemporary Iranian law right or its waiver can amount to consideration in a transaction and sale of rights is permitted.