Abstract:
according to the authoritative texts, one of the conditions for the transfer of property to another property is the owner's consent; therefore, since this consent is not clear in the nosy contract; the holy law considers the validity of this contract dependent on the permission of the owner; the jurists have stated conditions for the influence of this permission; some of these conditions are coincidental, and in others there is a difference of opinion between the jurists, which includes the non-precedence of rejection of permission; the famous jurists have considered the requirement of this condition and in this regard they have relied on evidence such as consensus, the decline of the title of marriage, the rule of subordination and the principle of companionship; article 250 of the iranian civil code also follows the famous jurists in this case; the present study, using descriptive-analytical method, first deals with the controversy in the evidence of this theory, and then by insisting on the saheeh of muhammad bin qais and explaining the nature of transactions and the discovery of permission, it finds this requirement invalid; therefore, it seems necessary to revise and amend the mentioned article.
Machine summary:
A Critical Analysis of the Juridical Theory Regarding the Ineffectiveness of Permission After Rejection in a Fuduli Contract Hojat Azizollahi * Abdulhamid Mortazavi ** Seyyed Amir Moghaddas Zadeh *** Abstract According to firm texts, one of the conditions for transferring property to the ownership of another is the consent of the owner; therefore, since this consent is not clear in a Fuduli contract (unauthorized agency), the Holy Legislator considers the validity of this contract contingent upon the owner's permission; jurists have stated certain conditions for the effectiveness of this permission; some of these conditions are agreed upon, while in others, there is a difference of opinion among jurists, including the controversial condition that rejection must not precede permission; the majority of jurists hold this condition as mandatory and have cited evidences such as consensus (Ijma) and the Rule of Control (Qa'idat al-Taslit) in this regard; the present research, using a descriptive-analytical method, first examines the views regarding the nature of permission in a Fuduli contract and investigates ten theories; as a result, it can be said that the arguments for the majority view of jurists regarding the ineffectiveness of permission after rejection are debatable, and based on the difference in the nature of permission in a Fuduli contract, there is a dispute regarding the effect of permission after rejection; specifically, if we consider permission as pure discovery, or discovery of constructive consent, or as a subsequent condition, then permission after rejection is effective; however, according to the theory of transfer, or discovery of a ruling, or a new contract, the buyer's creation is nullified by the owner's rejection, and subsequent permission has no effect.
(
, 
, 
)
