نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانش‌آموخته دکتری دانشگاه شهید مطهری، گروه فقه و حقوق خصوصی، دانشگاه و مدرسه عالی شهید مطهری، تهران، ایران
2 دانشیار دانشگاه شهید مطهری، گروه فقه و حقوق، دانشگاه و مدرسه عالی شهید مطهری، تهران، ایران
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
In contract law, one of the principles consistently emphasized by jurists and Islamic scholars—both in theory and practice—is the avoidance of contract nullification. The principle of preventing contract nullification does not adhere to a uniform system across legal frameworks; rather, each jurisdiction has developed its own distinct methods. One such approach involves legislative or contractual intervention to rectify elements that would otherwise render a contract void. For instance, mechanisms like the severability of contracts or the elimination of invalid clauses demonstrate efforts to preserve contractual validity by excising defective portions. These examples illustrate that legislators have long recognized—and utilized—methods to salvage voidable acts. However, such cases remain context-specific, lacking a comprehensive theoretical foundation. Through meticulous analysis, certain French judges
and jurists have observed that legislators, whether intentionally or inadvertently, remedy void acts. Consequently, they have sought to systematize these isolated instances under a unified framework termed the regulation of legal acts. This article examines this institution, elucidating French jurists’ perspectives on the theory and evaluating its potential applicability within Imamiyyah jurisprudence and Iranian law.
Methods
This research employs a comparative methodology, drawing on library sources and descriptive-analytical approaches to assess the viewpoints of French and Iranian jurists, as well as Imamiyyah scholars.
Results
The regulation of legal acts constitutes a specific judicial or legislative process whereby a defective legal act is corrected—for example, a contract containing an invalid clause may be preserved if the parties remove the offending provision. French jurists lack consensus on the regulation of legal acts, a divergence rooted in several factors. Some equate it with the institution of confirmation of relative nullity, arguing that confirmation occasionally fulfills the same function as regulation, thereby blurring the distinction between the two. Others highlight inconsistencies in regulatory methods, noting that while some forms of regulation are statutory, others arise from party autonomy or require judicial intervention.
Proponents of regulation’s unique nature advocate caution, as its retroactive application risks harming third parties. For instance, during the interval between a contract’s formation and its regulatory correction, parties may act on the contract’s terms, potentially incurring significant costs. By contrast, Imamiyyah jurisprudence and Iranian law lack preventive mechanisms like the bifurcation of nullity (absolute vs. relative) or doctrines such as contractual transformation and apparent acts. Consequently, void legal acts proliferate, as the legal system recognizes only three states for such acts: void, valid, and *non-effective*. While valid acts pose no issue, non-effectiveness (e.g., unauthorized contracts or acts by legally incapacitated persons) and voidness (resulting from violations of mandatory rules) create ambiguities. Crucially, any breach of mandatory rules outside the scope of non-effectiveness leads to nullity, disproportionately expanding the range of void acts—a paradigm at odds with transactional stability. Thus, introducing regulatory mechanisms could resolve this tension.
Conclusion
Despite its challenges, the regulation of legal acts—by prioritizing contractual continuity and legal security—merits adoption within a carefully delineated framework.
کلیدواژه‌ها [English]
)