The Validity of Transaction by Conduct in High-Value Sale

Document Type : Original Article

Authors

1 Associate Professor, Faculty of Law, University of Qom, Qom, Iran

2 Bachelor’s Student, Faculty of Law, University of Qom, Qom, Iran. Corresponding Author Email: ar.karimi@stu.qom.ac.ir

Abstract

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

Highlights

  • Affirming the validity of transactions by conduct in high-value sales is inferred in Iranian Civil Law from the apparent meaning and generality of Article 339 of the Civil Code.
  • However, this interpretation seems inaccurate in light of the philosophy of jurisprudence, the logical interpretation of the law, and the significant role of Sharia and custom in shaping transactional concepts and titles.

Referring to these sources as the foundations of Iran’s current legal system reveals that mere conduct is insufficient in high-value sales; instead, the parties must make an offer and acceptance which explicitly indicates the intention of sale so that transactions by conduct get legal validation

Keywords

Main Subjects

References

  1. References

    Books

    1. The Holy Q’uran (In Arabic)
    2. Abu Jayb, Sa’adi, Jurisprudential Dictionary, Damascus, 1998. (In Arabic)
    3. Al Sinhouri, Abd al Razzagh, The Mediator in Explaining Civil Law, Volume 4, Beirut: House of Arab Heritage Revival, No Date. (In Arabic)
    4. Amid Zanjani, Abbas Ali, Rules of Contracts; Book of Sale and Trade, Tehran: Khorsandi, First Edition, 2012. (In Persian)
    5. Ansari, Sheykh Morteza, Profits, Volume 3, Qom: Islamic Council of Thought, 2009. (In Arabic)
    6. Bahjat, Mohammad Taghi and Abol-Hassan Isfahani, Rescue Device, Qom: Shafagh, 2002. (In Arabic)
    7. Bigdeli, Ataollah, Knowledge of the Law; An Introduction to the Status of Law in Iran, Tehran: Ishraq, 2015. (In Persian)
    8. Bostani Fawad, Afram, Alphabet Culture, Tehran: Islamic, 1996. (In Persian)
    9. Emami, Sayyed Hassan, Civil Law, Volume 1, Tehran: Islamic, 37th Edition, 2016. (In Persian)
    10. Heydari, Kamal, Research in the Jurisprudence of Al-Ma'atah, Baghdad: Imam al-Jawad (PBUH) Foundation for Thought and Culture, 2018. (In Arabic)
    11. Ibn Manzour, Abi al Fazl Jamal al-Din Mohammad Ibn Mokram, Arab Customers, Volume 15, Beirut: House of Arab Heritage Revival, First Edition, (In Arabic)
    12. Ja’fari Langroudi, Mohammad Ja’far, Terminology of Law, Tehran: Ganje Danesh, 2021. (In Persian)
    13. Jaberi Arablou, Mohsen, Dictionary of Islamic Jurisprudence Terms, Tehran: Amir Kabir. 1987. (In Persian)
    14. Jazayeri, Mohammad Ja’far, Guide the Student to the Explanation of Gains, Qom: Bookstor of Jazayeri, 1992. (In Arabic)
    15. Katouzian, Nasser, Family Law, Volume 1, Tehran: Ganje Danesh, Fifth Edition, 2021. (In Persian)
    16. Katouzian, Nasser, General Rules of Contracts, Volume 1, Tehran: Ganje Danesh, 2021. (In Persian)
    17. Katouzian, Nasser, Obligations Outside the Contract, Volume 1, Tehran: Ganje Danesh, 2012. (In Persian)
    18. Katouzian, Nasser, Specific Contracts, Volume 1, Tehran: Ganje Danesh, Fifth Edition, 2021. (In Persian)
    19. Kho’ei, Abol Qasem, The Path of the Righteous, Volume 2, Qom: Mehr, 1989. (In Arabic)
    20. Khomeini, Sayyed Rouhollah, Refinement of Principles, Volume 2, Qom: Isma’eiliyan, No Date. (In Arabic)
    21. Khomeini, Sayyed Rouhollah, Tahrir al Wasilah, Volume 2, Qom: Imam Khomeini's Works Compilation and Publication Institution, 1985. (In Arabic)
    22. Khomeini, Sayyed Rouhollah, The Book of Sale, Volume 1, Qom: Imam Khomeini's Works Compilation and Publication Institution, 2012. (In Arabic)
    23. Makarem Shirazi, Nasser, Anwar al-Fiqah (Book of Sale), Qom: Imam Ali Ibn Abi Talib (PBUH) School, 2004. (In Arabic)
    24. Modarresi, Mohammad Reza, Abdollah Amirkhani and Javad Ahmadi, Extensive Jurisprudential Survey of Sale, Volume 2, Qom: House of Interpretation, 2014. (In Persian)
    25. Mohaghegh Damad, Sayyed Mostafa, Discussions of the Principles of Jurisprudence, Volume 1, Tehran: Islamic Sciences Publishing Center, 21th Edition, 2021. (In Persian)
    26. Mohaghegh Damad, Sayyed Mostafa, Jurisprudential Study of Family Law; Marriage and Its Dissolution, Tehran: Islamic Sciences Publishing Center, 11th Edition, 2005. (In Persian)
    27. Mohaghgh Helli, Islamic Law in Matters of What Is Permissible and What Is Forbidden, Volume 2, Researched by: Abdol Hossein Mohammad Ali, Beirut: Dar al-Adwaa, Second Edition, 1982 .(In Arabic)
    28. Mohaghgh Sani, The Compendium of Objectives in Explaining the Rules, Volume 9, Qom: Al-Bayt Foundation for Heritage Revival, First Edition, 1989. (In Arabic)
    29. Na’eini, Mirza Mohammad Hossein, Benefits of Principles, Volume 2, Qom: Islamic Publishing Institute, 1983. (In Arabic)
    30. Nafisi, Ali Akbar and Mohammad Ali Foroughi, Nafisi Culture, Volume 3, Tehran: Khayyam, No Date. (In Persian)
    31. Najafi, Sheikh Mohammad Hassan, Jawaher al-Kalam, Volumes 8 and 22, Beirut: Dar Al-Ahya Arab Heritage, Seventh Edition, No Date. (In Arabic)
    32. Nouri, Yahya ibn Sharaf, Total Explanation of Al-Mohazab, Volume 9, Beirut: House of Thought, No Date. (In Arabic)
    33. Safa’ei, Sayyed Hossein, General Rules of Contracts, Tehran: Mizan, 36th Edition, 2021. (In Persian)
    34. Safa'ei, Sayyed Hossein and Sayyed Asadollah Emami, Summary of Family Law, Tehran: Mizan, 51th Edition, 2019. (In Persian)
    35. Shahidi, Mehdi, Formation of Contracts and Obligations, Tehran: Majd, Fourth Edition, 2005. (In Persian)
    36. Sheikh Mofid, Mohammad Ibn Mohammad, Al Muqna'ah, Qom: Islamic Publishing House, 1989. (In Arabic)
    37. Tabataba'ei Yazdi, Sayyed Mohammad Kazem, The Firm Anchor (Al Urwah al Wuthqa) Volume 2, Tehran: Al Haydari Printing House, 1957. (In Arabic)
    38. Tarihi, Fakhr al Din, Bahrain Forum, Volume 3, Qom: Islamic Culture Publishing House, Second Edition, 1988. (In Arabic)
    39. Tousi, Mohammad Ibn Hassan, Explanation in the Jurisprudence of the Imamiyyah, Volumes 2 and 3, Tehran: Al Murtadhuwiyyah Library, 1958. (In Arabic)
    40. Tousi, Mohammad Ibn Hassan, The Book of Dispute, Volumes 2 and 3, Qom: Islamic Publishing Institute, 1996. (In Arabic)
    41. Zayn al Din ibn Ali (Shahid al Thani) and Ja'far ibn Hassan Mohaghgh Helli, Paths of Understanding to the Revision of Islamic Laws, Volume 5, Qom: Islamic Knowledge Foundation, 1992. (In Arabic)
    42. Zayn al Din ibn Ali (Shahid al Thani), Al-Rawdha al-Bahiya in the Explanation of the Light of Damascus, Volume 2, Qom: Islamic Thought Academy, 2021. (In Arabic)

    Articles

    1. Pour Arashd, Nader, “Legal Status of Endowment by Conduct”, Endowment; the Eternal Legacy, Issue 63, 2008. (In Persian)

    Internet Resources

    1. Amoli Larijani, Sheykh Sadegh, “Series of Lectures on the Jurisprudence of Endowments”, (2019/11/12), Available at:
Legal Research Quarterly
Volume 28, Issue 4 - Serial Number 112
December 2025
Pages 147-166

Files

History

  • Receive Date: 17 February 2025
  • Revise Date: 18 March 2025
  • Accept Date: 26 April 2025

Share

How to cite

Statistics