نوع مقاله : مقاله پژوهشی
نویسنده
استادیار، گروه حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه شهید چمران اهواز، اهواز، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
This study aims to determine the legal nature and effects of the original party’s right to “undo” an unauthorized transaction under Article 252 of the Iranian Civil Code and to compare it with the approaches adopted in Imami jurisprudence and the laws of Islamic countries. The central issue is whether the original party’s declaration constitutes rescission of the contract, withdrawal from his declaration of intent, an independent unilateral legal act, or the consequence of the termination of an implied undertaking to await the owner’s authorization. Using a descriptive-analytical and comparative method, the study draws on sources of Imami jurisprudence and Sunni schools of law, the laws of Iran, Egypt, Iraq, Jordan, Qatar, the United Arab Emirates, Türkiye, and Algeria, and, where necessary, selected examples from Western legal systems. The findings indicate that, under Hanafi and Maliki jurisprudence and the earlier Shafi‘i view, an unauthorized disposition is treated as an act suspended pending authorization, whereas the later Shafi‘i view and the predominant Hanbali position regard it as void. The laws of Islamic countries likewise adopt varying solutions, ranging from the concept of a suspended contract and the granting of a period for authorization to a right to invalidate the sale of another person’s property. Under Iranian law, the requirement that “delay causes loss” is incompatible with recognizing an unrestricted right of withdrawal for the original party. The study concludes that the power conferred by Article 252 is an independent, statutory, and conditional unilateral legal act, exercisable upon the occurrence of prejudicial delay through an unequivocal declaration by the original party. The resulting loss of the possibility of ratification and the ineffectiveness of any subsequent authorization take effect when the declaration reaches the owner or is placed within the owner’s reasonable sphere of awareness. An analysis based solely on the “termination of an implied undertaking” is insufficient, since the existence of such an undertaking cannot be established in every transaction and the direct source of this power is the law itself.
کلیدواژهها [English]
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