mohammad mahdi kariminiya; Alireza shojaei
Abstract
In Iranian legal system that is based on Imamia jurisprudence and following the French legal system scheme, the main executive guarantee for the breach of the conditions set ...
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In Iranian legal system that is based on Imamia jurisprudence and following the French legal system scheme, the main executive guarantee for the breach of the conditions set for concluding the contracts is known to be an annulment if it is inoperative or voidable. Of course, only in some case and not as a general law principle, it has included some other terms such as relative nullity or modifiable nullity in its statue laws. Although in this regard, the French law system has considered the terms absolute nullity, relative nullity, revocable and terminable; However, following the Hanafi’s jurisprudence, the Afghanistan law system has recognized and approved another general rule, namely “corrupt”, in addition to the nulled executive guarantees, endowed and inoperative. This general rule causes the nullity in the law system of this country to have several levels and in cases, in which the contract is modifiable, prevent its annulment; so the legal relations between the parties can continue. According to the Iranian and French legal system, a corrupt and nulled contract are considered to be similar concepts, both of which possess the same nature and have only one effect that is being ineffective; But from the point of view of the Afghan legal system, a corrupt contract has a nature and definition independent of a null or void contract and in contrast to a null contract that due to the disorder in its elements, has not been created at all in the first place and doesn’t have constructive existence, the corrupt contract does not possess any problem with respect to the validity of the elements and it is considered to be a corrupt thing only because of the disorders in the attributes and has an effect after taking the possession. As a result, after the realization of a corrupt contract by means of legal credits, if taking possession or delivering occurs, the effect of the contract, which is a property, is achieved and the corrupt contract has legal effects; However, according to the law of Afghanistan and Hanafi jurisprudence, this work is considered an evil and illegitimate work and the utilization of the subject of the ownership to a corrupt contract is forbidden by the divine law and prohibited.
