چکیده:
Most authors consider unauthorized transactions in the Iranian legal system as one of the general rules of contracts and have extended it to permissive and covenant contracts. This generalization (expansion) has led to rulings that are sometimes contrary to public order. For example, he obligates the principal to a contract whose obligor is unknown to him. On the other hand, it is not possible to identify covenant contracts that merely give rise to an imperative rule. In English law, the transaction of another person’s property may be made to the unauthorized person or the owner in the form of a covenant, which in the first case is exceptional and in the second case is in accordance with the rule. The complexities of Imami jurisprudence in separating the imperative rules from the status rules, as well as the fact that the jurisprudential reasoning system is more systematic than in British law, have caused the scope limitation of the possibility of concluding covenant contracts in a form of unauthorized contract in Iranian law. In this article, by comparatively examining the provisions of covenant contracts and the effects of unauthorized contracts in Imami jurisprudence, Iranian and British law, we come to the conclusion that concluding a covenant contract in Iranian law is not a general rule in contracts and it is possible only if the subject of the transaction or the subject of the obligation is the property of another and if the act was committed; is possible when to have financial effects.
خلاصه ماشینی:
In this writing, by comparatively examining the rulings of covenant contracts and the effects of fuduli contracts in Imami jurisprudence, Iranian law, and English law, we reach the conclusion that the conclusion of a covenant contract in a fuduli manner in Iranian law is not a general rule in contracts and is only possible if the subject of the transaction or the object of the obligation is property belonging to another; and if the act was the responsibility of the promisor, it is possible only when it possesses financial effects.
Fuduli covenant contract, taklifi and wad'i ruling, commitment to a third party's act, principle of necessity Introduction In Iranian law, the effect of a contract may be the creation of ownership transfer, obligation, agency, and other similar credit matters.
In addition to the exceptions to the “Nemo dat” rule, in English law, a transaction involving property belonging to another may occur as a result of an act outside the scope of an agent's authority or by a person who pretends to represent the owner of the goods (Dalley, 2011: 526).
Point It is interesting to note that in English law, neither regarding the aforementioned exceptions nor regarding the theory of agency arising from ratification, is there any mention of the logical objections raised by Imami jurists; for example, we know that a constitutive act is either existent or non-existent, and it cannot, like consent, exist before or after the intention; because it is itself one of the causes of creation, and by this same reasoning, jurists and legal scholars have considered the suspension of formation to be impossible (Mohseni, 1390: 180).
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