نوع مقاله : مقاله پژوهشی
نویسندگان
1 دکترای فقه و مبانی حقوق اسلامی دانشگاه تهران
2 گروه حقوق دانشگاه علوم اسلامی رضوی-مشهد مقدس
3 .
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
One of the key challenges under the topic of Darak (eviction liability) concerns the question of whether a contractual clause stipulating the intensification of Darak liability between the contracting parties—when the subject matter or the price of sale turns out to belong to a third party—is valid according to jurisprudential and legal standards. The necessity of examining this issue arises not only from the lack of a comprehensive and comparative study offering practical recommendations but also from contextual factors such as the lengthy litigation process required to establish third-party ownership, the rise in property prices, the limited familiarity of the parties with each other, and other constraints that justify mutual agreements to increase liability. In Imami jurisprudence, such a condition is not deemed inconsistent with jurisprudential principles, and the objections raised against its validity are unfounded. Under Iranian civil law, the condition is recognized as valid and enforceable pursuant to Articles 10 and 230 of the Civil Code, and similar objections to its enforceability are dismissed. The Iraqi legislator likewise affirms this principle in Article 556 of the Iraqi Civil Code. This study, conducted through a descriptive–analytical method and based on library research, concludes that the validity-oriented perspective aligns more coherently with jurisprudential and legal foundations. This position is supported by considerations such as the presumption of validity (aṣl al-ṣiḥḥa), the general primary and secondary rules, the absence of any legal prohibition by the Sharīʿa, the promotion of creditor security and assurance, and its compatibility with the broader objectives of the law.
کلیدواژهها [English]
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