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]
Article 23 of the Executive Regulation of Article 3 of the Law on Mandatory Official Registration of Immovable Property Transactions provides that, in uniform contracts, the right to rescind for non-payment must be exercised solely through registration in the electronic system, without prior judicial proceedings. The central question is whether registration merely records a rescission that has already occurred or itself contributes to bringing about rescission. This study examines the role of registration in the legal requirements for rescission and its consequences for the continued existence of the contract, payment obligations, and judicial review. It adopts a descriptive, analytical, and comparative method, examining Islamic jurisprudential sources and Iranian, Saudi, and Egyptian law. The findings indicate that, within the scope of Article 23, electronic registration constitutes the prescribed form for exercising rescission and the final element of its compound legal cause. Accordingly, the contract remains in force until final registration and is terminated at that moment, provided that all other requirements have been satisfied. This conclusion rests on the contractual origin of the right and the parties’ acceptance of its prescribed method of exercise within the uniform contract. It is therefore compatible with Article 449 of the Iranian Civil Code and the limits of regulatory authority, without extending to statutory rights of rescission. Registration is necessary but cannot remedy missing substantive requirements. Justified withholding of payment, discharge of the debt by set-off, or the absence of a right to rescind renders the registered rescission void. Payment of overdue obligations before registration also prevents use of this mechanism. Comparison with Saudi and Egyptian law confirms that dispensing with a prior judgment does not exclude subsequent judicial review and that digitalization alone does not alter the legal nature of registration. The study therefore recommends expressly identifying the legally effective moment of registration and enabling debtors to submit substantive defences through the system.
کلیدواژهها [English]
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