نوع مقاله : مقاله پژوهشی
نویسندگان
1 کارشناسی ارشد حقوق خصوصی و مدرس دانشگاه، قم، ایران
2 استادیار جامعةالمصطفی العالمیة، قم، ایران..
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
The pre-sale of agricultural products and movable manufactured goods is a type of contract whose subject matter is property that will exist in the future, with the principal obligation being its “creation and delivery” at the stipulated time. Such contracts simultaneously respond to economic and production needs; however, they face particular challenges in Imamiya jurisprudence and civil law, including ambiguity regarding the contractual form, the precise determination of the property's characteristics and quantity, the time of transfer of ownership, and weaknesses in legislative and evidentiary regulations. Using a descriptive-analytical method and relying on jurisprudential sources and provisions of the Civil Code, this study evaluates these obstacles and proposes measures for bringing the contractual framework into conformity with relevant legal and jurisprudential requirements. The findings indicate that the jurisprudential principles of Awfū bil-ʿuqūd (“Fulfill the contracts”), man atlaf(a) māla al-ghayr fa-huwa lahu ḍāmin (“Whoever destroys another person's property is liable for it”), and lā ḍarar (“There shall be no harm”) are applicable to future property and can serve as a basis for obligating the seller to compensate for damages. From a legal perspective, the existing regulations, particularly Articles 221, 226, and 227 of the Civil Code, are insufficient to address liability arising from an obligation to create or produce the subject matter, making their reform in light of a “production risk-based liability” framework necessary. Aligning pre-sale contracts with valid Sharīʿah-based contracts such as salam and istisnāʿ, precisely stipulating contractual conditions, formally registering contracts, and establishing an integrated registration and oversight system can eliminate substantive and formal obstacles and help ensure contractual fairness and transactional security in transactions involving future property.
کلیدواژهها [English]
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