چکیده:
In the present article, an attempt is made to review a ruling that has not been doubted in its correctness until now. The ruling in question is the prospective effect of rescission. The minds of jurists and legal scholars are familiar with the fact that the effect of rescission is prospective; consequently, as soon as the rescission occurs, the contract is terminated, but its past effects remain in force. However, what has become common in international exchanges today is different from the procedure prevalent in our domestic law. Based on the aforementioned recent theories, rescission causes the retroactive dissolution of the contract; it seems that selecting this theory as the predominant theory would be desirable. The present article aims to prove this theory by criticizing the arguments of the prospective effect theory and strengthening the foundations of the desired theory.
خلاصه ماشینی:
ir Comparative Law, 2018, Vol 5, No 2 (9831), 24-52 Before entering the discussion and as an introduction, it is necessary to mention the benefits and practical effects of each of the two theories (the prospective effect and the retroactive effect of rescission): As a practical effect of each of the two theories, it must be said that if the effect of rescission is prospective, all effects that the contract has left on the relations of the parties until the time of the occurrence of rescission remain in force; consequently, the parties are only obliged to return the considerations and have no obligation regarding the benefits.
Conversely, if rescission has a retroactive effect, the legal status of the parties will completely change to the status before the contract, in such a way as if no contract had ever existed; consequently, in addition to returning the considerations, the parties are also obliged to restore the benefits because, based on this theory, that which creates a right for the parties (the contract) does not exist.
In English law as well, the effect of rescission extends to the past; this ruling can be easily inferred from the following phrase: in the English legal system, contract rescission creates three different rights for the opposing party: 1- The right to restitution of consideration; 2- The right to restitution of benefits;1 3- The right to claim damages, which the latter right is very extensive and includes reliance damages2, consequential damages3, remoteness of loss4 (under specific conditions), and ordinary losses5 (Linda Mulcahy, 2008:211-217).
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