نوع مقاله : علمی- پژوهشی
عنوان مقاله English
نویسندگان English
In a conditional sale (bay' al-khiyari; sale subject to an option), a person sells his property and stipulates that if, within the option period, he can return the price to the buyer, he may rescind the contract and take back the subject matter. In some cases, after the transaction, the subject matter is destroyed while in the buyer’s possession. In such a situation, considering the impossibility of returning the very subject matter (‘ayn) to the seller and the importance of compensating for the resulting loss, the fundamental question is: does the seller’s option to rescind become extinguished upon the destruction of the subject matter in the buyer’s possession? In response to this question, after acknowledging that the liability for the destruction (dhamān) of the subject matter lies with the buyer, three main theories have been proposed: 1) Extinguishment of the option; 2) Non-extinguishment of the option; and 3) A differential theory. Sheykh Ansari initially held the view of the non-extinguishment of the option, and subsequently pointed to the probability of its extinguishment upon destruction of the subject matter. In contrast, Imam Khomeini initially expressed the theory of extinguishment, and later articulated a differential theory based on the stipulations present in the contract. The Civil Code has adopted the theory of non-extinguishment. Based on the obtained results, and considering that in a sale subject to an option, the seller is concerned, in order, with both the specific identity (‘ayniyyat) of the subject matter and its financial value (māliyyat), therefore, due to the compensation of the seller’s loss in case of destruction, the theory of the non-extinguishment of the seller’s option is preferred and buttressed.
کلیدواژهها English
