Document Type : Scientific Research
Abstract
hand, even some of the jurists, stating the accuracy of innominate contracts, did not consider these agreements
under pactasuntservanda and proposed the aim of their stipulation for obtaining the irrevocability. Hence, the
subject of conditions got prominent role in Iran’s law which follows Shiite jurisprudence and it was reflected
under an independent chapter in Civil Code.
The requirement of ss. 237, 238, and 239 of Civil Code is, if the breach of affirmative term happened, the
innocent party cannot terminate the contract at first, but he only would have the coercion right to the other party;
moreover, on the second step he could take measure to terminate the contract if the essential requirements met. It
means that the remedy of coercion right and termination right are not in transversal relation. The major question
is whether we cannot abjudicate to the transversal relation of the coercion right and termination right under the
breach of term by considering the analysis of decisions, statements of jurists and legal writers, and the stage of
terms in contract law i.e. can the person in whose favor the term made utilize the termination remedy as soon as
the breach of term happens? It seems, the Shiite jurists has accepted this point of view by reference to the rational
proof, principle of harm, and the basis of the analysis of implied term under the contract law.
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