Document Type : Original Article
Authors
1
L.L.M., Faculty of Theology & Islamic Sciences, University of Tabriz, Tabriz, Iran. Corresponding Author Email: d.m.a.fiqh@gmail.com
2
Associate Professor, Faculty of Theology & Islamic Sciences, University of Tabriz, Tabriz, Iran
Abstract
One of the minor issues raised regarding transaction by conduct is the possibility of exercising the right of option therein. If the intention of the parties to the transaction by conduct is simply to allow possession, then, according to most jurists, the transaction is not a sale at all and consequently, it is not possible to exercise options thereto. On the other hand, if their intention is owning, possession, and transaction, but the only benefit is the permission to possess; according to one opinion, exercising the right of option is absolutely prohibited, and according to another, a distinction must be made: In this way, if the purpose of including the right of withdrawal is to create an actual effect on the contract, the option will not be valid here, but if the purpose is to enable the option holder to cancel something that is effective in the transfer, the option is valid. Another viewpoint is that if the transactors' intention is ownership transfer and, according to custom and law, transactions such as a verbal sale are considered effective to irrevocable ownership, in this case, the option is accepted, although different opinions have been presented regarding the option of condition. From a legal perspective, it should be stated that from the totality of Article 339 of the Civil Code together with the totality of Article 456 of the Civil Code, likewise, by invoking the appearance of Article 193 of the Civil Code, it is possible to accept the same theory, namely the exercising of all options, even option of condition, in transactions by conduct, from the perspective of the Iranian legislator. Based on the theory that transactions by conduct, give rise to volatile (cancellable) ownership, three propositions have been stated: exercising, non-exercising, and distinction between types of options. This research has proven that, according to all the aforementioned principles, the exercising of all options, even the option of condition, is possible in transaction by conduct, and in unilateral transaction by conduct, with the exception of some unilateral, such as divorce, which involves an obligatory exit, the exercising of options is not prohibited
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