Abstract:
مطالعه و تجزیهوتحلیل نظریههای حقوقدانان بزرگ کشور روش پسندیدهای است که متأسفانه در مطالعات حقوقی ایران تا حدی مغفول مانده است. استاد کاتوزیان نظریههای مهمی در مباحث حقوقی مختلف دارد که اغلب محل مراجعۀ حقوقدانان و دادگاههاست و تبیین و تحلیل نقاط قوت و ضعف آنها از ضرورتهای جامعۀ حقوقی امروز است. یکی از این نظریهها ضرورت تفکیک میان ضمانت اجرای نقض ترک فعل حقوقی و نقض شرط نتیجۀ منفی (سلب حق) و اعتقاد به صحت عمل حقوقی مغایر در فرض نخست و بیاعتباری قرارداد مغایر در صورت دوم است. در این مقاله نظریۀ مذکور از جهات مختلف تجزیهوتحلیل شده است. نتیجۀ پژوهش نشان میدهد این نظریه با پیشینۀ فقهی مسئله، موازین قانون مدنی، رویۀ قضایی و فهم و تلقی عرفی افراد در معاملات چندان انطباقی ندارد.
The agreement to abandon a certain legal act, whether the subject of the
main obligation is in a contract or in the form of a condition attached to the
contract, according to various general legal principles, including the
principle of validity and the principle of irrevocability and according to
articles 10, 219, 231 and 237 of the Civil Code is valid. This sometimes
appears in the form of a condition of a legal forbearance and sometimes it
takes the form of a negative status condition (Shart-e Natijeh). When this
kind of agreement is violated, we will inevitably face the issue of validity or
invalidity of the contrary legal act.
When facing this issue, three basic questions can be asked: First, whether
the legal act contrary to mentioned agreement should be considered invalid,
or the validity of the said legal act should be admitted and the obligee should
be directed towards receiving possible damages from the offending obligor
as a solution more compatible with Iran's legal system. The other thing is
whether, one of these two solutions being chosen, a single procedure should
be adopted and the same sanction be applied in the event of a violation of
either of these two forms of agreement, or the sanction of violation of legal
forbearance and negative status clause are different n the first of which the
validity of the legal act and in the second the invalidity of the legal act
are acceptable. Finally, if we believe in the necessity of distinguishing
between the sanction of the violation of these two forms of the agreement,
what is the criterion for distinguishing the two from each other.
The study of jurisprudential sources, legal books and articles, as well as
a brief reflection on judicial precedent shows that there is no unanimity of
opinion regarding the sanction of the breach of these two forms of agreement
and that, especially among lawyers, the theory of the necessity of
differentiating between the sanction of legal forbearance and the negative
status condition has a more significant influence.
One of the jurists who has dealt with these questions in fair detail in his
numerous works and believes in the necessity of distinguishing between the
sanction of legal forbearance and the violation of negative status condition is
Professor Katoozian. Although many jurists have also looked into this issue,
it is more necessary to emphasize and focus on his works in this field for
three main reasons: firstly, the theories of professor Katoozian, including
this theory, have a really special importance and credibility in Iran's legal
and judicial system. It has been and continues to be the place of reference for
judges, lawyers and other jurists. Another thing is that in the opinion of the
author, there is some kind of ambiguity or incoherence in the contents of his
analyses regarding the above questions, and the present study provides the
opportunity to re-examine his positions in this regard. Finally, the criticism
and detailed explanation of Professor Katoozian's views and opinions, like
any other great theorist, apart from being a kind of appreciation for their
years of scientific and effective efforts, leads to the emergence and
flourishing of new ideas and solutions and ultimately to the development of
the legal system.
In this article, the author has tried to analyze Professor Katouzian's theory
regarding the necessity of distinguishing between the sanction of legal
forbearance and the violation of the negative status condition based on the
above questions. The research shows that his theory is not compatible with
the famous opinion of the Islamic jurists, the standards of the civil Code, and
the fundamental orientation of the judicial procedure, and that in case of
violation of any of these two forms of agreement, the sanction of invalidity
of the contrary legal act must be defended.