Received: 11 February 2015, Accepted: 22 March 2015, Available online: 17 April 2015

Transcription

1 The basics and effects of defective goods in Iran's laws Zeinat Rastghoo and Gholamreza Arefian * Department of Low, Fars Science and Research Branch, Islamic Azad University, Marvdasht, Iran Department of Low, Marvdasht Branch, Islamic Azad University, Marvdasht, Iran *Corresponding Author: Gholamreza Arefian Received: 11 February 2015, Accepted: 22 March 2015, Available online: 17 April 2015 Abstract There are foundations in Iran s rights that upon which can be the justified the repair of defective goods as a replacement way of transaction cancelling. Each of these foundations indicate the avoidance of damage occurrence. In the way that the parties justified to repair the defective goods, it has effects that can be cancel new transaction or it's terminated. this research tries to represent two parts of repair basics of defective goods and agreement effects on repair goods, in Iran data collection and related sources that represented by intellectual and rights reason. Keywords: repair, Iran rights, harm, rules, defective goods. Introduction 1. In the basic of defective goods repair in Iran rights: The mentioned basic in Iran rights includes of principle of rule necessity, without harm rules, the prohibit rules about abuse of rights, prohibit of ownership that lead to other s losses, rigid intention, commercial convention. In the following we explain every one The necessity of transaction: The 219 article of Tran civil law stated in this regard that: The contraction that are located in law among Iran parties is a surrogate, unless by parties agreement or legal actions terminated. The rule of article is that each transaction needs contraction, and it means that of parties can t 1

2 cancel it after its. So this rule performs in all places unless the right cancel it. This rule called Asale-al-lozom. 1-2 without harm rule: In Islamic law, without harm rule has a extensive territory from civil liability to conventional meaning and Islamic Jurisprudent it as a secondary sentence and limited one, so wherever disadvantage arises, it will abstain: for example, if the buyer due to the defect of goods losses. Without harm rule give him opportunity to cancel the transaction. In this respect, jurisprudent believe that harm problem and it prevention is a Mostagel_late_Aglieh, means that legislators has made their wisdom about it. So based on the without harm rule, if the seller offer to repair the defected good or replace it, the buyer should welcome such proposal and this receipt avoid the cancel right. 1-3 prohibit rule about abuse right: Article 40 Iran constitutional law stated: Nobody can harm to others or rape the public insert. The 46 principle proposed abuse right and stated that: everyone has his or her own legitimate business and by ownership nobody can rape other business. And therefore, in the 132 article of Iran civil law stated that nobody can occupy the telicity that harm to other neighbors unless it be in the magnitude of formal and fix its unprofitable need or remove of harm. In accordance to this rule, if the buyer received the defective goods and accept it or agreed with seller to repair it, because of defect in goods cannot cancel the contract of course this case looks to be fitted, because they agreed and acceptance of defect goods means the transactions over. 1-4 prohibition of ownership that leading to others: Ownership is a capture rule, the base of this rule is the famous Hadith of prophet that said: Al nas-ol- mosleton -ala -amvalehem and it means that people has domination about their own their own property. By view of this Hadith and according to this rule, if someone is the owner of something has right to act in any way but according to without harm law, the capture shouldn t cause damage to another entry. In conjunction with 30 Article of civil law: any ownership has any right about his own property unless the law exceptions. 1-5 will rule Article 10 of civil law about will rule stated that: private contracts is effective when there is contract with law. The principle of will rule in Iran law have the following effect: 1- person 2

3 has right to transact or reject in and can t be forced him to do 2- after contract conclusion, the will of parties respected and public authorities has no right to change the contract and its obligation 30 view the from except in exemptions, the contract has no certain formalities and after the contract composition, contract can be fitted. 4- interpretation of contract shall be explicit and implicit demands of parties. But in this regards, there are 3 exception that restricts it and includes of 1- law, 2- public order and 3- ethics. 1-6 commercial convention: In legal terms the convention means, fondness of group community mind with affairs legal radiations. Hence in contractual practices, the mental intimacy of group or community relaxed to specific matters of contract: In this regard, given that in most cases the conditions and effects of contract in the Function of parties objects, so in the way that the intention of parties isn t clear condition and effect matter, it used convention to specify it and the convention vote is about ambiguous parts of the contract. In this regard, the influences of convention on contract can be seen in 220 article of civil law convention and 224 article of the same law for meaning and words interpretation of contract. 225 article of the same law about contract condition and its components. In Jurisprudence, convention divided according to various credits that includes of 1- verbal and practical conventions 2- usual and transactional 3- public and specific convention 4- current and incorrect convention. 1-7 contraction of repairs 478 Article of civil law about the repair of property stated if it is clear that the property has defect in the rent time, lessee can cancel it or can accept in the available condition, but if landlord repair it, lessee can t cancel the contract. In this regard, Iran civil law isn t distinguished general and miner reports, but law about landlord and lessee relations stated that: General repairs is belong to landlord and minor reports is belong to lessee, Article 22 of law stated that, the general that is related to base of building belongs to landlord and minor repairs which makes suitable application belongs to lessee. 3

4 In this regard, Article 478 of civil law stated that the repair of defect by landlord prohibit the contract cancel. 2- The repair effects of defect goods in Iran. In Iran law, the parties of contract called Khan and Khande (Khahan is the real owner of interest property and Khahan is seller or owner in rented time) if they agreed to repair the effected good, should be follow: cancelling of landlord right 2- new contract composition 30- the necessity of repair of defected goods 4- conviction of lessee about harm ( cancel right of lessee that we will explain in the follow cancel right In Iran law, if defect is clear in goods, according to Article 422 of civil law can cancel the contract and if it reserves, lessee can attain compensation. So if landlord rent it to lessee and lessee repair it this matter at first terminate the cancelling right and in the second stage terminate the compensation right. Because in Iran law, it means that cancel of contract avoid the loss or if the defected good received by both parties agrees to Arsh, difference cost of real good with repair one, so, if the landlord par to lessee the repair cost, he loses the cancelling right the composition of new contract: As mentioned before, Article 422 of civil law in Iran, about defeat good stats terminate low or acceptance of defect good pay repair cost, but when they agreed about it, they should composite another contract that called repair of defect good in contract for the rent of interest thing, land lord can repair it himself by low order (478 of civil law) 2-3- the necessity of lessees to repair the defect: If lessee and landlord agrees to repair defected good, they assign contract that called repair contract and according Article, 10 of civil law it assigns. So the lessee has to do it and if he don t obey it landlord can sound to court and we can find it in Articles 219, 220,237 and 238 of Iran civil law. 2-4-The lessees conviction to compensate damage: 4

5 If the landlord don t repair the defect as they agreed, in two ways lessee damages: 1- the repair cost of defect goods by another person 2- No-profit damage, like loss of opportunity, loss to use good, spiritual damage, so on. Because of paper restriction and extensive explanation of way and amount of damage, we don t explain it. 2-5-cancell right of lessee As mentioned if the lessee and landlord agreed to repair and the lessee reject it, he can attain it form court. According to Article 239 of civil law. Conclusion: 1- By will law, the partly can do any kind of legal agreement 2- The transaction of defect to good 3- The basis of repair, give parties right to repair the defected goods. 4- If the parties agreed to repair it, composite new contract and terminate cancelling right. References: 1.Shahidi, Mahdi,2003,Civil law obligation3,majd Publication,p.61 2.Katozian,Naser,2001,out of contract obligation,zamman Ghahri,Daneshgah Tehran,p Bahrami, Ahmadi,Hamid,1997,abuse right,et'telaat publication,p.65 4.Mirzaee Ghomi,1998,Jamee-ol-shatat,Rezwan publication,p Mohaggeg Damad,Seid mostafa,2010,second part of jurisprudence rule,samt publication,p Safaee,Seid Hosein,2003,Civil right foundation,second edition,samt publication,p Katozian,Naser,1995,Civil law, Common rule of contracts,beh nashr Publication,p Shahidi,Mahdi,2007.Contracts and obligation principle, Majd publication,p Safaee,Seed Hosein,2003,civil right foundation, contracts and obligation, Samt publication,p Piroozan,Gheys,2014,The consequential civil liability of solution and invalidity of contract,research Science University of Fars. 5