A Comparative Contemplation on the Rule regarding the Destruction of the Object of the Sale before Delivery in Article 387 of the Iranian Civil Code: A Comparative Study of Imamiah Jurisprudence, Iranian Law and CISG
Abstract Article 387 of the Iranian Civil Code, following the Imamiah thinkers, has prescribed the termination of sale in the case of the destruction of sold object before delivery to buyer without seller's encroachment or negligence. Now, the question is whether this rule is valid, and if the...
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| Format: | Article |
| Jezik: | fas |
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University of Qom
2017-08-01
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| Serija: | پژوهش تطبیقی حقوق اسلام و غرب |
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| Online dostop: | https://csiw.qom.ac.ir/article_1088_d1914019f6b235eae39d0acdfbc9335c.pdf |
| Izvleček: | Abstract Article 387 of the Iranian Civil Code, following the Imamiah thinkers, has prescribed the termination of sale in the case of the destruction of sold object before delivery to buyer without seller's encroachment or negligence. Now, the question is whether this rule is valid, and if the answer is affirmative, is the aforementioned rule applicable in case of price loss before delivery as well? Criticizing the grounds of this rule, this paper has concluded that they are not of sufficient strength. Accordingly, based on the opinion selected by the authors namely the failure of compensation for the weakness of source by the conduct of famous Imamiah jurists, absence of the conduct of wise men for imposing the losses resulted from loss on the seller, possibility of the claimed idjma (unanimity) to have a proof as well as the immediate transfer of ownership upon the contract conclusion, the buyer must suffer the losses. Correspondingly, the rule of article 387 is exceptional and its basis has not been followed by other articles of the Civil Code. It is noteworthy that the Convention on International Sale of Goods (CISG) has adopted this rule and despite confirming the immediate transfer of ownership upon the contract conclusion, has not accepted the transfer of risk to the buyer before delivery. |
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| ISSN: | 2476-4213 2476-4221 |