نوع مقاله : مقاله پژوهشی
1 گروه فقه و مبانی حقوق اسلامی / دانشگاه سیستان و بلوچستان.
2 دانشجوی دکترای فقه و مبانی حقوق اسلامی دانشکده الهیات دانشگاه سیستان و بلوچستان
عنوان مقاله [English]
Studies show that if one of the contracting parties decides to abort his option of lesion, if he means enormous deception, the option of evident deception will not be aborted from him. In addition, evident deception has not been mentioned in the law. Therefore, it will be important to distinguish enormous deception and evident deception (in fair litigation proceedings). To achieve this, it is necessary to evaluate the determinants. The findings of this research, which was done by descriptive-analytical method, show that the standard of custom absolutely (as stated in Article 417 of the Civil Code) cannot be accurate and free from defects to distinguish enormous deception and evident deception. Because custom, in explaining the cases of loss, considers the financial solvency (ability) of the contracting parties, time and place, terms of the transaction and the value of the object of sale. Therefore, customary loss cannot be considered without considering the situation of the contracting parties. Therefore, by explaining and distinguishing between financial loss and status loss, the best criterion for distinguishing is custom, which is not custom by considering only financial loss, but custom by considering status loss. Article 419 Civil Code seems to confirm this view. Therefore, it is suggested that the legislator take action to elaborate on Article 417 of this law.