نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The waiver of the option due to defect (Khiyār al-ʿAyb) by the buyer results in the loss of the right of restitution; however, regarding the right to claim Arsh in Islamic jurisprudence, opinions differ. Some scholars maintain that with the waiver of the option due to defect, the right to claim Arsh is also extinguished, while others reject this view. In Sunni jurisprudence, the waiver of the option due to defect—sometimes expressed under terms such as “acceptance of the defect”—is stated to result in the loss of both the right of restitution and the right to Arsh. Compared to the Imāmī perspective, which maintains the persistence of the Arsh claim, this view has little standing. Civil law in Iran does not explicitly address this issue, and this lack of clarity has resulted in divergent judicial practices. This study, using a descriptive–analytical method, proposes a contemporary approach aligned with modern necessities and societal norms. According to this perspective, the waiver of the option due to defect does not extinguish the right to Arsh, on the grounds that Arsh has an independent and distinct nature from Khiyār al-ʿAyb and serves as a compensatory mechanism when the sold item is defective. The right to Arsh is not opposed to the price; rather, it functions as a tool to mitigate losses in cases of defect. Given its exceptional nature in the context of Khiyār al-ʿAyb, the waiver does not affect or diminish the right to Arsh. In cases of doubt regarding whether the waiver of Khiyār al-ʿAyb nullifies the right to Arsh, the principle of non-extinguishment prevails. Therefore, the primary purpose of waiving all options is to reinforce the contract and affirm its enforceability, without affecting the right to Arsh.
کلیدواژهها English
