Jurisprudential and Legal Perspective on the Transactions Violating the Condition of Legal Omission of Act
Subject Areas : فصلنامه مطالعات میان رشته ای فقه
Hossein Jafari Samet
1
,
Mahshid Sadat Tabaei
2
,
Javad Niknejad,
3
1 - is a doctoral student in the Department of Private Law, Faculty of Humanities, Ayatollah Amoly Branch, Islamic Azad University, Amoly, Iran.
2 - Assistant Professor, Department of Private Law, Faculty of Humanities, Electronic Unit, Islamic Azad University, Tehran, Iran
3 - Assistant Professor, Department of Private Law, Faculty of Humanities, West Tehran Branch, Islamic Azad University, Tehran, Iran.
Keywords: Condition of Legal Omission of Act, Valid, Invalid,
Abstract :
Proviso is one of applied topics and it is very common in our society. As one of its types, negative condition is divided into two groups of material and legal. Regarding a legal negative condition, a person who is responsible to perform a condition undertakes contractually not to perform one of the obligations - a contract or unilateral obligation. One very important question which arises here is that, if the person who is responsible to perform a condition violates their obligation, and in legal terms, if they perform a negative condition, what would be the jurisdictional or judicial order for the transaction or for that violation? There is disagreement between the jurisprudents and lawyers in this regard. Some considers the transaction violating the condition as valid and also consider the person in whose favor the condition is made a right to claim compensation; on the other hand, some consider such a transaction as invalid; and, some regard such a condition as invalid. Some of jurisprudents and lawyers consider a transaction which violates negative condition as invalid; and, finally, some regard it as unopposable. Our hypothesis is that, it depends on the negative condition which is violated. In other words, if the obligation is to perform a unilateral obligation such as cancellation, the transaction violating the condition is invalid; but, if the undertaking is the omission of an act, the transaction violating the condition is considered as to be in the observation state.
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