Abstract
A contract can be defined as 'an agreement between two or more parties, which is legally binding.' Sometimes, people regret concluding a contract, and give up continuing it and fulfilling their obligations. Where the cancellation of contract is with the mutual consent of the parties, it is called Ighale (cancellation of contract by mutual consent). Cancellation of contract by mutual consent literally means to release, but in legal terms, it means mutual consent to the dismissal of a contract and its effects. This is different from termination of contract. Cancellation of contract by mutual consent, as found in the Iranian Civil Code, has its roots in Islamic rules. It is generally a kind of contract in itself, the condition for the validity of which must be satisfied, otherwise, it may not be considered a valid one. The main pillars of cancellation of contract by mutual consent are the parties' consent and intention; the parties' capacity; the subject matter of the cancellation; and the means of showing will. Cancellation of contract by mutual consent (Ighale) is stipulated in the second clause of Article 264 of the Iranian Civil Code as a means for the discharge of obligation. The objective of this research is to examine the ambiguities associated with the concept of Ighale in Iranian Contract Law, and to suggest ways for eliminating such ambiguities in order to foster a better understanding of the concept. This is a library-based research, and the main method applied is analytic, although elements of a descriptive method are also visible.
Highlights
Iran is a country located in West Asia and the Middle East (Zarrinkoub, 2010), but with a legal system that has, since 1929, revolved around that of the West, especially the Roman-Germanic legal system (Harisinejad, 2009)
In the second clause of Article 1134 of the French Civil Code, mutual consent is recognised as a way for the dissolution of contracts (Shahidi, 2011)
The drafters of the Iranian Civil Code adopted the aforementioned Article from Article 1234 of the French Civil Code, by making some changes to it, in order to make it relevant to the Iranian legal system
Summary
Iran is a country located in West Asia and the Middle East (Zarrinkoub, 2010), but with a legal system that has, since 1929, revolved around that of the West, especially the Roman-Germanic legal system (Harisinejad, 2009). It should be noted that Article 1234 of the French Civil Code contains nine means for the discharge of obligation, four of which (loss of the subject of contract, annulment or cancellation of contract, fulfillment of contract, and lapse of time) are not included in Article 264 of the Iranian Civil Code. The destruction of one of the considerations of the contract (for example, money, or goods), will not impede the cancellation of contract by mutual consent In such a case, once Ighale has occurred, the equivalent of the destroyed subject matter, where it is fungible, or its price, where it is non-fungible, will be given to the other party in place of what has been destroyed (Madani, 2004). The research underlying the paper is of the library type, and the main method employed is analytic, with some elements of the descriptive and analytical methods
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