نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه حقوق خصوصی، واحد ساری، دانشگاه آزاد اسلامی، ساری، ایران.
کلیدواژهها
عنوان مقاله English
نویسنده English
The opposition of formalism- which the registration of documents related to transaction is one of it's manifestations- to the principle of the consensualism in contracts, reveals only part of it's role in the contemporary law in civil law countries, and the allegation that a simple exchange of creative intention is sufficient to create a contract also accounts for only part of the positive law. To discover the importance of formalism, one must go beyond the analysis of the rules relating to the formation of contracts. Despite the establishment of the principle of consent in contracts, formalism plays an important role in contemporary law and is also a complemention to it. In Islamic jurisprudence, the focus of jurists was mainly on the expression of the intention of the contract by method other than writing, especially by words. Some even considered words to be a constituent element of the contract and something substantial that can be compared to the mandatory formalism in Roman law. However, only a group of later jurists, accepted the use of writing to express intention in rare cases without the parties being obliged to do so. Although there is no position for writing in legal acts in civil law, in negotiable instruments law, transactions made on a instrument must necessarily be in writing and the Registration of Documents and Real Estate act, as well as the Hesbi Affairs act, have also emphasized the need to use writing in some legal acts such as peace agreements, gift agreements, wills, etc. In Iranian legal regulations, which it is emphasized on the writing of legal acts, the role of registration is a complementary aspect and the principle of consensuality of legal acts as well as the constructive role of the intention has never been denied in them.
کلیدواژهها English
