Survival Clause: A Comparative Study in Islamic and French Law

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KAZEMI MAHMOUD; TAGHIZAADEH EBRAHIM; Ahmadi Bayazi Ali

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Journal: COMPARATIVE LAW REVIEW Year:2020 | Volume:11 | Issue:1 Page(s): 245-270

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Title

Survival Clause: A Comparative Study in Islamic and French Law

Author(s)

KAZEMI MAHMOUD | TAGHIZAADEH EBRAHIM | Ahmadi Bayazi Ali | Issue Writer Certificate

Keywords

Adherence of the clauseQ1

Independence of the contract clauseQ1

Relation between contract and clauseQ1

Survival of the clauseQ1

Abstract

Discussing the extent to which the contract clause of adherence to the contract is one of the important issues to be raised in relation to the terms of the contract. Some legal texts such as Article 246 of the Civil Code of Iran have been deduced from the viewpoint of the Iranian legislator that it is a condition for the conclusion and dissolution of the contract. If a contract is canceled due to a legal or contractual reason, the contract clause will be null. It is also known in Islamic jurisprudence that the clause follows the contract. The fundamental question is that is it possible that a contract clause remains after termination of the contract? It is obvious that there are several cases that, despite the dissolution of the contract, contract clauses have continued to be legal and remain affective and valid. These terms are considered as survival clauses. In French law these clause are known as "Les obligations survivant au contrat". the new French Civil Code, Article 1230, has ruled out some of the terms of the contract from this general rule and stipulated that these clauses would remain in force upon dissolution of the contract. The basis for the survival of some terms after the dissolution of the contract, the examples of them in Iranian law with a comparative study in Islamic jurisprudence and French law forms the subject of this article. For this purpose, this article is prepared in a descriptive analytical method. As a conclusion of this article we should note that there are two types of contract clause: dependent clauses and Survival clauses. Dependent clauses are those referring to the considerations of the contract. For example the clauses which are related to the quantity or quality of the considerations are dependent clauses. Such clauses can not survive after dissolution of the contract. In the other hand, the survival clause is a clause that can remain after dissolution of contract. For example the arbitration clauses and penalty clauses are survival clauses.

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APA: Copy

KAZEMI, MAHMOUD, TAGHIZAADEH, EBRAHIM, & Ahmadi Bayazi, Ali. (2020). Survival Clause: A Comparative Study in Islamic and French Law. COMPARATIVE LAW REVIEW, 11(1 ), 245-270. SID. https://sid.ir/paper/246291/en

Vancouver: Copy

KAZEMI MAHMOUD, TAGHIZAADEH EBRAHIM, Ahmadi Bayazi Ali. Survival Clause: A Comparative Study in Islamic and French Law. COMPARATIVE LAW REVIEW[Internet]. 2020;11(1 ):245-270. Available from: https://sid.ir/paper/246291/en

IEEE: Copy

MAHMOUD KAZEMI, EBRAHIM TAGHIZAADEH, and Ali Ahmadi Bayazi, “Survival Clause: A Comparative Study in Islamic and French Law,” COMPARATIVE LAW REVIEW, vol. 11, no. 1 , pp. 245–270, 2020, [Online]. Available: https://sid.ir/paper/246291/en

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