تدلیس در قراردادها؛ مبانی و مسائل آن در فقه امامیه و حقوق ایران

There is disagreement among scholars regarding the definition of misrepresentation. Some argue that misrepresentation occurs only through an act or omission. Others believe it encompasses any deceptive behavior, including lying and deliberate silence. This difference has blurred the boundaries between misrepresentation and the legal concepts of defect and breach of description.
While most jurists limit the application of misrepresentation to situations involving the concealment of defects or false descriptions, some writings consider misrepresentation to be synonymous with deception and fraud in transactions, encompassing any form of misleading behavior. The term "misrepresentation" literally translates to "darkening and covering the reality" and is synonymous with the Arabic term "ghash." In the view of jurists, misrepresentation is a deceptive practice employed to mislead the other party into a contract.
The concept of misrepresentation hinges on the occurrence of deceptive actions and the presence of a deliberate intent to deceive (the mental 
element). Additionally, it requires a mistake on the part of the contracting party. However, there are differences in the understanding and examples of deceptive actions within Imamiyya jurisprudence and Iranian civil law. This article emphasizes the originality and independence of the concept of misrepresentation.
 
Methodology
This research employed a qualitative approach, utilizing library resources for data collection and concept analysis. It aims to compare the two prevailing views on the concept of deceptive actions and their correspondence with the legal foundations and civil law of Iran.
The article first explains the concept of misrepresentation and its elements based on the consensus of Imamiyya jurists and the prominent opinion among Iranian legal scholars. It then delves into cases of debate, such as silence or refraining from disclosing faults during transactions, and untrue statements. The analysis explores the roots of these disagreements and the reasoning behind the prominent jurists' view that considers these actions to be misrepresentation. Finally, it presents the minority opinion and the position of civil law, demonstrating their compatibility with the principles and foundations of Iranian law.
 
Research Questions
The present research, conducted descriptively using library resources, seeks to answer the following questions:

What is the concept of misrepresentation in jurisprudence and law, and how does it relate to the jurisprudential term "fainting in transaction"?
What are the pillars and conditions for realizing the option of misrepresentation?
Does the concept of misrepresentation apply to deliberate silence and refraining from expressing faults?
Can the title of misrepresentation be applied to false descriptions of the transaction?
What are the indicators of the independence of the misrepresentation option from related concepts, particularly defect and breach of description?
What are the reasons for the prevalence of the misrepresentation theory with silence and refraining from expressing defects?
Is fraudulent operation only related to the product itself, or can it manipulate the price?
What is the position of Iran's civil law regarding the material element of fraudulent representation?
Finally, is the misrepresentation option independent, or is it considered an example of other options?

The article discusses and answers these questions in four sections.
 
Response to the Questions
This article argues against the view of prominent jurists, stating that the concept of fraud is characterized by two key features: through misrepresentation, the deceitful party leads the other party to enter a contract that they would not have agreed to if they had full knowledge. Therefore, realizing misrepresentation does not necessitate proof of loss. The legislator does not intend to force anyone into an obligation they did not freely choose.
Furthermore, the conditions for misrepresentation differ from those for breach of condition of attribute. This applies when the characteristic description is part of the agreement. However, in cases of fraud, the deceived party consents to the transaction by trusting the fabricated appearance presented to them. Additionally, the concept of deception cannot be conceived without intention and will. However, in the case of silence, the mental element of misrepresentation is absent. While a silent person may not have good intentions, their malicious intent is not certain.
Similarly, in the case of false statements, although the mistake originates from the speech, the material element of misrepresentation is questionable.
 
Findings
Articles 438 and 1128 of Iran's Civil Code are consistent with the concept and nature of misrepresentation. However, the inclusion of deliberate silence and false statements as misrepresentation in Imamiyya jurisprudence has some justifications: within the fiqh system, customs and habits are not considered sources of Sharia rulings; therefore, customary conditions are not valid. Additionally, according to the consensus of Imamiyya jurists, implicit conditions are not considered valid and binding.
Thoughtful jurists have utilized the misrepresentation rule to provide proper protection to the victim, particularly in marriage contracts. There is an additional significant reason in marriage contracts that justifies a stronger emphasis on the theory of fraud: faults only cause the annulment of marriage only in limited and specific cases. Therefore, thoughtful jurists, citing misrepresentation, aimed to provide proper support to the injured party.
Furthermore, some legal scholars argue that if the scope of misrepresentation is limited to cases of fraudulent operations, certain defects and diseases without outward signs would be excluded from its purview. This is because deceiving the other party regarding such defects requires only refraining from disclosing them.
However, this concern can be addressed by relying on Articles 1128 and 225 of the Civil Code. Based on contractual customs and habits, it can be argued that the health of the spouses is an essential and implicit condition in marriage. Therefore, if one party has defects or illnesses before the marriage, the other party has the right to terminate the marriage, even if these issues were not discussed during preliminary negotiations.