نوع مقاله : علمی- پژوهشی
عنوان مقاله English
نویسندگان English
Article 188 of the Iranian Civil Code defines a contract subject to an option of rescission as one in which either or both parties, or a third party, have the right to rescind the contract. Accordingly, a sale subject to an option of rescission, as contemplated by Article 399 of the Civil Code, is a sale in which such a right is conferred on either or both parties, or a third party. In legal scholarship, however, this type of sale is sometimes treated as synonymous with a conditional sale (bayʿ al-sharṭ). Although the two concepts are distinct, a conditional sale may be regarded as a particular form of sale subject to an option of rescission. As with other types of sale, ownership of the purchase price passes to the seller, while ownership of the property sold passes to the buyer upon conclusion of the contract. Each party is therefore entitled to exercise the rights associated with ownership, including the right to transfer the property. Furthermore, under the general principles of contract law, rescission ordinarily operates prospectively. Thus, where the buyer has transferred the property to a third party, the seller cannot ordinarily recover the property itself and must instead seek its equivalent or value from the buyer following rescission. Nevertheless, in Unification Ruling No. 810, dated 25 May 2021, the General Assembly of Iran’s Supreme Court recognized the seller’s right to recover the property itself, even following its transfer to a third party, provided that the specified contractual conditions are satisfied. This ruling is open to criticism on several grounds. Given its departure from the general principles governing contractual rescission, the article argues that it should be interpreted narrowly.
کلیدواژهها English
