چکیده:
Warranty of eviction refers to the seller's liability regarding the sold item or the buyer's liability regarding the price, in the event that the item turns out to belong to a third party and the owner does not permit or validate such a transaction, which has an unenforceable nature. This warranty is a compulsory liability, yet at the same time, the contracting parties propose certain conditions related to it. Regarding whether these conditions are invalidating or not, various and sometimes contradictory opinions and rulings have been presented by jurists. The main point is that all conditions proposed in connection with the warranty of eviction cannot be easily accepted and are subject to discussion and dispute.
خلاصه ماشینی:
"Islam-Pazhuhi" Specialized Biannual Journal Fourth Issue, Spring and Summer 2019: 551-931 Date of Receipt: 2019/03/20 Date of Acceptance: 2019/05/21 The Effect of Contract on Modifying the Rules of Guarantee of Eviction (Daman al-Idrak) Hosein Davarzani* Seyyed Mohammad Razavi** Abstract Guarantee of eviction refers to the seller's guarantee regarding the sold item, or the buyer's guarantee regarding the price, in the event that the item turns out to belong to someone else and the owner does not authorize or ratify such a transaction, which has a non-executable nature.
From the apparent meaning of the Sheikh's statement in Al-Makasib, it is understood that if the contracting parties stipulate in a sale contract that the seller shall be liable if the sold item is destroyed in the hands of the buyer, such a condition necessitates the realization of liability (Ansari, 5831, Vol. 1: 582).
One of the Imami jurists, in response to the question: "If it is stipulated within the contract that if the sold item becomes entitled to a third party, the seller shall not be liable, is such a condition valid or not?", has stated that the aforementioned condition is undoubtedly void.
Because when the original owner reclaims the sold item from the buyer, the buyer, based on this condition, will not have the right to recourse to the seller, and this means that the unauthorized seller (fuduli), by stipulating the waiver of liability for loss of entitlement, makes the owner something that he had no entitlement to, because the compensation paid in the contract was the property of another, and consequently, the price received is considered the unlawful consumption of property, which is also forbidden.
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