The Fate of Contract if Suspensive Condition Fails in French and Iranian law

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Amini Mansour; Osanlou Akbar

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Journal Paper

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Journal: PRIVATE LAW Year:2022 | Volume:19 | Issue:2 Page(s): 321-336

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Information Journal Paper

Title

The Fate of Contract if Suspensive Condition Fails in French and Iranian law

Author(s)

Amini Mansour | Osanlou Akbar | Issue Writer Certificate

Keywords

conditional obligation

Lapse

Non-fulfillment of the suspensive condition

Abstract

By virtue of Clause 3 Article 3, 1304-1306 French Civil Code, if a suspensive condition fails, the obligation is deemednever to have existed. Nevertheless, this Article falls short of specifying the fate of the contract. If suspensive condition fails, the classical doctrine will give it a retroactive effect. The main part of the contemporary doctrine, however, justifies the non-retroactivity of non-fulfilment of a suspensive condition with reference to the lapse of the "caducité" contract. This justification suffers from a paradox in its reasoning. On the one hand, if the condition fails, the obligation is deemed never to have existed, on the other hand, the contract is said to be a lapse. As the lapse of contract is a sanction for a contract which has been validly formed and later one of its "essential elements" disappears, it cannot prejudice a juridical act deemed never to have existed. Iranian law insufficiently stipulates the fate of the contract if suspensive condition fails, and there is a frequent reference to the sanction for nullity and dissolution. However, it would be better to recognize the lapse in the Iranian law for the non-fulfilment of condition in a suspensive condition.

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