چکیده:
The Imamieh scholars have wide disputes over the substantial effect of positive condition. Some jurisprudents regard the positive condition as lacking postural effect, believing it as merely an imperative rule. A group takes the path of extremism assuming it as an effect of debt, while other group reduces the postural right of positive condition to "right of demanding. Moreover, a group has taken a moderate approach, considering a postural effect for positive condition. They regard it as one of the types of financial right. The researcher names it financial covenanted right, believing that in some occasion, it turns to financial obligational right, which is debt. Iran's civil law doesn't take clear position, and this necessitates a precise explanation of the effect of positive condition in Imamieh's jurisprudence, which has been the source of the legislative adoption. Therefore, the present study uses a in this descriptive-analytical approach to explain the views and reasons of each group and to reveal the position and basis of civil law.
خلاصه ماشینی:
Explaining the Views of Jurists The Theory of Right of Rescission Some jurists, like Shahid al-Awwal, based on the principle of not obligating the obligor conditionally, believe that the “conditional clause” does not create a mandatory obligation on the obligor, and its meaning in the event of non-fulfillment of the condition is merely granting the right of rescission to the beneficiary and never obligates the obligor to perform the work (Shahid al-Awwal, 1410: 121).
In other words, based on this view, the beneficiary can demand the enforcement of the obligor as a matter of claiming his right; because the obligation to fulfill the condition is not merely a pure mandatory obligation; rather, it is an obligation arising from is the entitlement of the beneficiary (Iranian, 1379, vol.
In this regard, based on the consensus of jurists and by removing the defects and shortcomings of the third and fourth theories, another theory can be presented, such that Consider the provisions of conditional obligations as a mandatory ruling and their positive effect as a contractual financial right, which sometimes, including in the event of impossibility or default of the conditional obligor to fulfill the obligation, turns into a debt or financial obligation.
ج ٥، تهران : مؤسسة تنظيم و نشر آثار امام خميني (ره ).
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