نوع مقاله : مقاله پژوهشی
نویسنده
استادیار حقوق خصوصی، دانشکده علوم انسانی و اجتماعی، دانشگاه کردستان، سنندج، ایران.
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسنده [English]
The validity of the condition to forfeit of the option of inspection and incorrect description in contract is a point of dispute in legal thoughts and jurisprudential writings. According to the opinion of some legal writers and in some judicial opinions, the generality and application of Article 448 of the Civil Code, regarding the possibility of the condition of the forfeiture of all or some options in the contract, excludes the condition of the cancellation of the option of inspection. Also, in the opinion of some jurists, the condition of forfeiture of this option is invalid based on the rational rule of "prohibition of abrogation of a right that has not been created" and in the opinion of others, the condition of forfeiture of clause of violation of description option causes the transaction to be invalid. On the other hand, in some legal writings, the possibility of rescission of the choice of inspection is accepted by the condition of the contract, and also, some jurists have answered the objections of the opponents.
The present research, which using a qualitative method and using library resources, tries to solve the problems related to the validity of the condition of the fall of the inspection option and the incorrect description, while analyzing the discussion and evaluating different points of view. The main hypothesis of this research is the invalidity of the belief in the nullity of the condition of the fall of the choice of inspection and the incorrect description: because the occurrence of confusion and ignorance in the transaction causes the invalidity of the contract. While the right to terminate the transaction arises with the proof of the choice of inspection and the violation of description. Therefore, the realization of the option of vision does not have an effect on the removal of uncertainty, so that when it falls, the transaction becomes unknown. In other words, knowledge about the transaction is not created by establish the option, so that the removal of the option causes the transaction to become unknown. Also, some attributes that are mentioned in the transaction do not have an effect on creating knowledge and removing ignorance about the transaction, rather, they are among the attributes of perfection that come only for the purpose of attracting interest in the transaction. Therefore, the basis of the choice of inspection and violation of description in contracts is not related to the issues of ignorance and uncertainty in the transaction, but rather, it is related to the issue of mistakes; A mistake in the sub-characteristics stipulated in the transaction or in the assumption that the customer did not see the merchandise and bought it based on the description, is effective in the contract, and if he wrongs, can cancel the transaction. Because, the purpose of establishing the option of inspecting and breach of description is to remove the loss caused by the non-compliance of the transaction with the desired characteristics of the contracting party, so that he is not bound to the contract against his will and satisfaction. Thus, in the assumption that there is a mistake in the description, there is sufficient knowledge about the transaction, but the description of the subject of the transaction does not match the intention of the parties and so, the injured party has the right to rescind the transaction.
As a result, the means of the condition of the fall of inspection option and the violation of description is the waiver of the protection of the law to the possibility of termination of the contract by the party, and according to the fall condition, he is bound to not use the right of termination. Therefore, the condition of the fall of options leads to the consolidation of the transaction and agrees with the principle of the necessity of contracts (pacta sunt servanda).
Accordingly, article 448 of the Civil Code, under the heading "On the Rules Concerning Options in General", stipulates: " It is possible for forfeit all the options as a condition inserted in the deed of sale". So, the condition for forfeit the inspection option and incorrect description in the contract is a valid condition. In addition, it should be said: the condition of the forfeit of inspection option in the contract is outside the scope of the rule of "prohibition of abrogation of the right before its creation". Because, according to that condition, in fact, the contract party oblige that not to use the option, without he has revoked his right of termination before it is created. However, if the cancellation of all options is stipulated in the transaction, the totality of that condition does not include the option of violation of the condition, including the description condition. Also, in the assumption that the contract explicitly stipulates that: "If the seller does not comply with the specifications mentioned in the contract, the buyer has the right to cancel", the condition of canceling all options is out of the option of violation of specifications. Indeed, in these cases, there is a conflict between the general and specific terms of the contract. Undoubtedly, the specific condition is excluded from the scope of the general terms of the contract. In other words, the option of violating the description condition as well as the explicit condition of the option of inspection, remain out of the scope of the general condition of fall of option. Nevertheless, it is proposed that Article 448 of the Civil Code be amended by the addition of a Note stating that: "The condition for forfeiture of all options including the option of condition violation, does not include, the condition of description".
کلیدواژه‌ها [English]
منابع
الف) فارسی
https://doi.org/10.22075/feqh.2017.1933
ب) عربی
33 . شهیدی تبریزی، میرفتاح (بی‌تا). هدایه الطالب الی اسرار المکاسب. ج3، قم: دارالکتاب.
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