Execution Guarantee for Violation of Condition of Action in Imāmī Jurisprudence(With an Approach to Critique of Article 239 of the Civil Code)

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Maghsoudi Reza; Mohaghegh Damad Seyed Mostafa; Allame Seyed Mehdi; Mazloom Rahni Alireza; Asadi Koohbad Hormoz

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Journal Paper

Paper Information

Journal: Jurisprudence and Fundamentals of Islamic Law Year:2021 | Volume:54 | Issue:2 Page(s): 488-469

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Information Journal Paper

Title

Execution Guarantee for Violation of Condition of Action in Imāmī Jurisprudence(With an Approach to Critique of Article 239 of the Civil Code)

Author(s)

Keywords

obligation

right to annul

execution guarantee

Abstract

In Article 239 of the Civil Code of Iran, the effect of violating the condition of the act is the right of termination and obligation in the order of obligation on the right of termination. If we consider the condition as the creator of the right and its existential effect to protect the interests of mashrūṭun lah (person in whose favor a condition is made), the terms and regulations of the condition must be formulated and interpreted in such a way that it practically comes to the help of the mashrūṭun lah. The order provided in article 239 not only does not meet this expectation, but sometimes itself causes inconvenience and imposes unjust damages on the mashrūṭun lah and violates the rule of the need for full compensation for the contractual damages and causes instability in balance principle. On the other hand, the right of termination does not take precedence over the obligation to cause the submission. Therefore, the provision of both rights, i.e. the option of termination and the possibility of binding optionally, and in case of signing the transaction, claiming a condition as damages based on expediency and envy in each case, has been considered as the chosen view, which is the subject of the present research carried out in a descriptive-analytical method.

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