نوع مقاله : مقاله پژوهشی
1 استادیار دانشگاه تبریز
2 کارشناس ارشد فقه و حقوق اسلامی
عنوان مقاله [English]
One of the issues that have been discussed in jurisprudential and legal books is the option which is resulted from the breakdown of the contract, which Iran’s civil code has also dealt with in the materials (441, 442, 443). In the meantime, the important issue is the study of the legal and juridical foundations of this option. In short, it can be said that the option of sale unfulfilled in part is in the case that, for example, the sale contract is void regarding to some part of the object of the sale in some ways. In this case, the customer can terminate the contract or be satisfied with it and retake the price in return to the void part of the sale. Of course, it should be noted that this option is not specified to the sale, it is current in all contracts of exchange. The option of sale unfulfilled in part has two basic conditions: one is the void of the sale in respect to one part of the object of the sale and the other is the customer’s ignorance to this invalidation during the transaction. Although several juridical and legal foundations for the option of sale unfulfilled in part have been given, investigatingly, one can only refer to the “theory of commutative justice” and “risk theory” as its legal basis and exemplification of “the defect”, “the violation of the condition of the implication”, “the rule of negation of uncertainty” and the “rule of no harm” as the its jurisprudential foundations.