Document Type : Scientific
Authors
1
Jurisprudential and Legal Analysis of the Impact of the Lapse and Waiver of the Right of Defect (Khiyar-e-Aib) on Claiming Arsh, with Emphasis on Judicial Practice
2
Master of Private Law, Faculty of Law and Political Science, Allameh Tabatabaei University, Tehran, Iran, erfan_gh@atu.ac.ir
Abstract
This study, employing a descriptive-analytical approach, examines the impact of the lapse and waiver of the right of defect (Khiyar-e-Aib) on the preservation or extinction of the right to claim Arsh from both a jurisprudential and judicial practice perspective, with particular focus on a critical analysis of the binding decision of the General Board of the Supreme Court, No. 75, dated 18/11/1401. The fundamental question addressed is how the lapse or waiver of Khiyar-e-Aib affects the right to claim Arsh. Using a library-based research methodology, the study aims, first, to elucidate the relationship between Khiyar-e-Aib and Arsh through jurisprudential and legal foundations, and then to explain whether Arsh survives or is extinguished upon the waiver of Khiyar-e-Aib. The analysis of the sources reveals two prevailing perspectives regarding the relationship between Khiyar-e-Aib and Arsh: Arsh is considered an integral component of Khiyar-e-Aib; therefore, with the waiver or lapse of Khiyar-e-Aib, the right to claim Arsh is also extinguished. Arsh constitutes an independent right, separate from Khiyar-e-Aib, in the sense that it is the right to compensation due to the defect in the sold item; hence, the waiver of Khiyar-e-Aib has no effect on the right to claim Arsh. In evaluating these perspectives, it appears that, given the conventional and literal meaning of Khiyar—which denotes the option to rescind a contract—the interpretation of Arsh as subsumed under Khiyar-e-Aib, and thus the exclusion of Arsh from protection upon waiver of Khiyar-e-Aib, is untenable. Moreover, the internal intention of the contracting parties in waiving contractual options primarily reflects their desire to consolidate the transaction and prevent future rescission, and cannot be interpreted as a waiver of the right to claim Arsh. Accordingly, the stance of the General Board of the Supreme Court in binding decision No. 75 is open to criticism. Based on these findings, it is recommended that the Civil Code explicitly stipulate the non-extinction of Arsh despite the absolute waiver of Khiyar-e-Aib. Until such codification occurs, judicial practice may rely on the insights of this research to guide its rulings in this regard.
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