Examining the Blue Pencil Rule in Common Law and Comparing it with Islamic Jurisprudence and Law of Iran

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Vakili Moghadam Mohammad Hosein

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Journal Paper

Paper Information

Journal: JOURNAL OF COMPARATIVE STUDIES ON ISLAMIC AND WESTERN LAW Year:2021 | Volume:8 | Issue:1 Page(s): 229-258

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Information Journal Paper

Title

Examining the Blue Pencil Rule in Common Law and Comparing it with Islamic Jurisprudence and Law of Iran

Author(s)

Vakili Moghadam Mohammad Hosein | Issue Writer Certificate

Keywords

Partial Nullity

Defect

Void Term

Distribution of the Consideration

Partial Enforcement of the Contract

Abstract

The blue pencil rule in common law is one of the solutions for dealing with partial nullity of the contract according to which the examining authority can, without the request of parties, pave the way for the partial enforcement of the contract through eliminating its void part. Due to the silence and ambiguity of Iranian Civil Code in this regard and the possibility of its occurrence in contracts, it seems to be necessary to examine and explain the acceptable solution in Islamic jurisprudence and law of Iran. Paying attention to conditions and cases relative to this rule in common law, this article attempts to elucidate the justifying foundations of the rule and assess its compatibility with law of Iran. To conclude, it can be said that although the possibility of eliminating the void part of the contract is compatible with the basics of law of contracts and is supported by transactional custom and is of practical advantages, the effects of this elimination have caused many jurisprudential-legal disagreements. This article, explaining the quality of the application of this rule in the trial procedure, considers the abolition and distribution of consideration as the main effects of the partial nullity of contract compatible with the foundations of Iranian law.

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