نوع مقاله : مقاله پژوهشی
نویسندگان
1 گروه حقوق دانشگاه رضوی-مشهد مقدس
2 گروه فقه و مبانی حقوق دانشگاه علوم اسلامی رضوی-مشهد مقدس
3 دانشگاه علوم قضایی و خدمات اداری
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
Darak liability—the seller’s obligation to refund the price if the sold property is later determined to belong to a third party—is one of the key legal consequences of a contract of sale in various legal systems. However, the possibility of waiving this liability through a contractual stipulation has long been a subject of debate. This study, using a descriptive–analytical method and a comparative approach, examines the validity or nullity of a clause excluding Darak liability in Imami jurisprudence, Iranian law, and Iraqi law. The findings reveal that, despite the existence of differing opinions, the dominant view in Imami jurisprudence and Iranian judicial practice (although lacking an explicit statutory provision) holds such a clause to be invalid. The Iraqi legal system, while recognizing the possibility of limiting liability, considers a clause excluding or reducing Darak liability void where the seller has intentionally concealed a defect or third-party ownership. The article argues that the invalidation of such exclusionary clauses is more coherent, grounded in considerations such as their inconsistency with the essential nature of commutative contracts, conflict with the principle prohibiting the combination of consideration and counter-consideration, and incompatibility with public order and the need to prevent fraud and the sale of another’s property. Upholding the validity of such clauses could undermine public trust and foster economic disorder. The study also examines the impact of the buyer’s knowledge or ignorance on his right of recourse against the seller.
کلیدواژهها [English]
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