The Review of Nullification of Void Clauses in Contract with Emphasis on Imam Khomeini’s view

Subject Areas : Private law

abolfazl Alishahi ¹ , Mohammadreza Hamidi ² , masoumeh hamidi ³

1 - دانشگاه یاسوج
2 - دانشگاه تهران
3 - دانشگاه یاسوج

Received: 2017-05-02 Accepted : 2017-05-02 Published : 2017-05-02

Keywords: Illegal clauses, Nullification, Correctness of the contract, Tacit clause,

Abstract :

Void Clauses” are clauses that make a lawful thing unlawful or an unlawful thing lawful or its requirement is in conflict with a fixed levied sentence. Undoubtedly these clauses are void and the obligor not only doesn’t have to do them but is not allowed to do them. The disagreement point is whether void clauses are the nullifier of contract too. The jurists that have considered the illegal clause nullifies, generally referred to lack of basis of “intention” and “consent” and also the emergence of “both sides’ ignorance of properties” in case of nullifies of clause and rarely some mentioned “lack closeness to illegal clause” as a part of correctness of the contract. In contrary, the others answered to these objections in detail. In this group of jurists’ view the clause compared to the main contract has adjunct aspect and is unable to disrupt in main basis. In this article, we have tried to do a correct judgment between these two opinions. On Imam Khomeini’s view there is no reason for the illegal clause to be diriment it and the other reasons of nullifies of void clauses with regard to legal nature of the clause - obligation by the same obligation - is not acceptable and if it was accepted it wouldn’t include all the void clauses. Of course, stipulation is with a tacit obligation in which obliges able to terminate the contract in case the clause doesn’t come off or terminate the contract as the reason of the tacit of the clause.