چکیده:
Upon delivery of the sold item to the buyer, the warranty of exchange or the risk arising from its destruction or damage is transferred from the seller to the buyer; however, before delivery, despite the transfer of ownership, this warranty remains the responsibility of the seller. Various theories have been proposed to justify this rule, known as 'destruction of the sold item before possession,' which lead to different practical consequences. This article, by evaluating these theories, aims to find a legal basis consistent with the nature of the aforementioned rule.
خلاصه ماشینی:
The latter theory (which is a matter of consensus in Imami jurisprudence (2) , is explicitly accepted by Article 387 of the Civil Code regarding the contract of sale, and has also been accepted without naming the guarantee in other commutative contracts such as lease, ja'alah, sharecropping, and loan) (3) is preferable to the three previous theories in terms of legal logic, commutative justice, the mutual intent of the parties, and the custom of reasonable people (bina al-uqala), which has also been confirmed by traditions, because: Firstly — the mere transfer of ownership without the buyer gaining access to the sold item does not result in a reciprocal guarantee, because in commutative contracts, the transfer of property or the acceptance of an obligation entails the obligation to deliver and perform the obligation, and the contract is formed with this motive.
For this reason, the third theory, which considers the transfer of ownership and consequently the transfer of reciprocal guarantee to be contingent upon delivery, has not been acceptable in most legal systems, and especially in our law, and it contradicts the requirements of the contract of sale, whose direct effect is being acquisitive.
Secondly: The evidence relied upon by the famous jurists regarding the destruction of the sold item before delivery, including narrations, the consensus of rational people (bina al-uqala), and consensus (ijma), refers to the reciprocal guarantee, because with the destruction of the sold item, the contract is rescinded, and consequently, the buyer becomes the owner ______________________________ 1 — See: previous jurisprudential sources, as well as Sayyid Muhammad Kazim Tabataba'i, Hashiya on Makasib of Sheikh Ansari, Vol. 2, p.
(
, 
, 
)
