نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار دانشکده حقوق دانشگاه قم، قم، ایران
2 دانشجوی کارشناسی، دانشکده حقوق، دانشگاه قم، قم ایران (نویسنده مسئول) ar.karimi@stu.qom.ac.ir
چکیده
تازه های تحقیق
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Within the Iranian Civil Law framework, despite several jurisprudential theories concerning the validity of transactions through conduct (Mu'āṭāt), their validity in contracts, including sales, is implicitly grounded upon Articles 191 and 193 and explicitly affirmed in Article 339. The legislator has expressly excluded this general rule only in two instances: marriage and, according to some interpretations, the contract of endowment. Nevertheless, in some cases, including high-value transactions, it needs to be examined whether the adequacy of mere conduct for contract formation is sufficient or not. What emerges from the appearance of Article 339 is that, after mutual agreement between the seller and the buyer in respect of the object of the bargain and its price, the sale is concluded by offer and acceptance “literally” or by exchange “by conduct.” Thus, the sale contract will be concluded and creates ownership, which is one of its effects. At first, this interpretation seems correct, and the absoluteness of Article 339 indicates so. However, in this article, by a profound analysis of sources of Iranian laws, jurisprudence and its philosophy, the important role of custom in shaping and correcting transactions by conduct, rational basis, and Sharia, alongside the denial of the aforementioned wrong interpretation, the necessity of using a declarative act, more than mere conduct, which explicitly indicates the intention of a sale, will be demonstrated
کلیدواژهها [English]
کتاب
مقاله
منبع اینترنتی
عربی
کتاب
References
Books
Articles
Internet Resources