Validation of the theory of

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Shahbazi Mostafa; Sajadikia Mahdi

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Journal Paper

Paper Information

Journal: THE JUDICIARY’S LAW JOURNAL Year:2023 | Volume:87 | Issue:124 Page(s): 41-69

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Information Journal Paper

Title

Validation of the theory of "the absoluteness of the right of imprisonment"

Author(s)

Shahbazi Mostafa | Sajadikia Mahdi | Issue Writer Certificate

Keywords

Right of arrest

Absolute right

exchange contracts

Refusal to fulfill an obligation

Immediate implementation of obligations

Abstract

By studying the existing works regarding the right of lien, it can be concluded that this right exists as an "absolute negative right" for the parties in the contracts, by which the parties can refuse to fulfill their obligations immediately after the conclusion of the contract. . make their obligations subject to fulfilling the obligations of the other party. In this theory, this right exists absolutely and unconditionally for each of the parties. This theory is stated in Article 377 of the Civil Code. In the research process, we come to the conclusion that this reading of the mentioned right is not without problems and it should be considered against some legal and jurisprudential principles and in some cases it leads to "intentional violation". In addition, the theory of "suspension" with the use of "objection and defense" can be presented as an alternative theory. According to this theory, not only is the lien not absolute and negative, but it is not multiplied by the number of parties.

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