Abstract:
An abuse of emergency is a situation in which an unfair contract is made to a person in an emergency Is imposed and the distressed person, due to these emergency conditions, accepts an excessive commitment against her/his will and consent or waives his right to the other party. In the law of most civilized countries, contracts based on the abuse of urgency are considered distinct from emergency transactions and are subject to separate provisions. In our country's law, Article 179 of the law, which is adapted from the law of France, deals with this issue and in such cases, for the distressed, the right to amend the contract is considered. But most jurists believe that this article is specific to shipping and maritime affairs and cannot be generalized to all cases of emergency abuse. Therefore, different theories have been expressed, including validity, invalidity, right of termination, non-influence and right of adjustment. As one of the results of this research, it can be said that contract modification theory has advantages that other opinions do not have. This theory can also be confirmed by the basis of the abuse of rights in Iranian law, which is the "no harm rule".
Machine summary:
In Iranian law, the solution that can be found in our country's positive law, taking into account its jurisprudential foundations, can be inferred through several ways: 1- The first solution that may be presented is: "In cases where the emergency situation of the party under necessity is unlawfully exploited and results in gross lesion (ghabn-e fahish), the person under necessity who has been harmed by the transaction can easily rescind the contract and free themselves from the burden of the excessive obligation by using the option of lesion (khiyar al-ghabn)" (Safaei, 1391: 129/2).
Some legal scholars in France have stated that whenever the exploitation and use by one party, accompanied by awareness, involves the abuse of the specific circumstances of the person under necessity, in such a situation and set of circumstances, the case cannot be considered one of necessity and the contract cannot be deemed valid.
In French law, despite the fact that judicial practice and legal doctrine, in interpreting Article 1109 onwards of this country's Civil Code, do not consider necessity effective in a contract and do not count it as duress, however, in cases of abuse of necessity, there is a tendency to link it to duress.
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