Abstract:
The principle of realistic and commutative justice and the authenticity of inner will are fundamental principles of modern contract law, possessing extraordinary importance in contemporary legal and judicial thought and serving as guides in difficult cases. This research addresses the application of these principles to one of the difficult and controversial cases of contract law in our country, namely conditional sale. An attempt has been made to establish a compromise between three important viewpoints regarding the ruling on this transaction, in favor of real and objective justice. The hypothesis presented is that the theory of validity should be applied to the natural nature of conditional sale, which is compatible with the requirements of idealistic justice and a formalistic view, while the theory of invalidity should be seen as referring to its deviation from the principle of commutative justice and common inner will. The possibility of judicial determination of real intention through indicators and principles has been explained from a jurisprudential perspective, which is a requirement of realistic and real justice in difficult cases and is preferable based on the investigative school in contract law. The goal is to ensure that the ruling on the primary nature of this transaction and the principle of freedom of will is not used as a tool to impose unfair contracts against the vulnerable party of the contract.
Machine summary:
2- Responses of the proponents of the validity theory to the objections: Proponents of the theory of the validity of conditional sale, the necessity of mentioning its regulations in the civil code, and the lack of need for its removal, have presented responses to the opponents' objections, such as: A- The establishment of the need for this type of transaction according to custom, its acceptance and practice, and its compatibility with the principle of freedom of will; B- The claim that the coverage of conditional sale for usury does not have totality because the owner hopes for redemption and the buyer hopes to own the sold item, and the concern regarding abuse is resolved by the court's discretionary power in searching for the real intent of the parties; C- The possibility exists to sell the subject matter of the conditional sale in a form suspended on a suspensive condition (returning the price of the first sale), and this does not differ significantly from the sale of pledged property by the pledgor; D- The failure to prove that the harm of this institution is greater than its benefit; E- By removing the legal texts of conditional sale and retaining the general rules of 'khiyar al-shart' (option of condition), we would practically have a conditional sale whose rules are not under the control and regulation of the law, and this would lead to a worsening of the situation (Sanhouri, 2000: 4/148); (Mir Moazi, 1387: 62).
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