Discussion and Criticism: Which should we follow, a circular or a law!? Defect causes the option to rescind - internal defect and external defect مقاله

Автоматическая аннотация:

Defect causes "Khiyar" (Option) Internal "Defect" and External "Defect" Mohammad Taghi Tabatabaei Chief Registrar of Office 211, Tehran (2) An "external" defect also causes the emergence of the right of Khiyar This circular1 and its like, besides being groundless and contrary to the law, and although pages of criticism can be written regarding its beginning and end, subject and predicate, minor and major premises, introduction and conclusion, and every word, sentence, and phrase within it, result in the fact that even in cases where the contracting parties truly waive their options with "choice and consent," in judicial authorities, the waiver of options—at the outset of the matter—is not considered voluntary. The statements of the jurists of both sides regarding the defect causing Khiyar and its criteria and rules are not free from confusion and anxiety—some general jurists have considered a defect necessitating a deficiency and reduction in price as a cause for Khiyar and the right of rescission, and Article 833 of the "Majallat al-Ahkam" and Article 855 of the Iraqi Civil Code have also adopted and followed this view, whereas a reduction in price is the subject of Khiyar al-Ghabn (option of lesion) and has no connection to a defect. Internal "Defect" or External "Defect" In summary: according to the opinions of the jurists of both sides, a defect, a minor deficiency in parts and members, or the absence of a quality among the qualities observed in a reality—of which instances and individuals of that reality are not devoid except rarely—is considered a defect causing Khiyar (option) and the right of rescission.