The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium
Construction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one of the challenging and controversial issues is the repudiation (termination or cancellation) of construction partnering...
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| Format: | Article |
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Razavi University of Islamic Sciences
2023-11-01
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| Series: | آموزههای فقه مدني |
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| Online Access: | https://cjd.razavi.ac.ir/article_1638_7007649c062b1d4d6201f85f4b26f373.pdf |
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| author | ghasem eslaminia KIYAN FULADI hamidreza parhamehr |
| author_facet | ghasem eslaminia KIYAN FULADI hamidreza parhamehr |
| author_sort | ghasem eslaminia |
| collection | DOAJ |
| description | Construction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one of the challenging and controversial issues is the repudiation (termination or cancellation) of construction partnering before the construction of pre-sale condominium and its impact on the pre-buyers of the condominium share. The view that considers the nature of the pre-sale contract in the contract of construction partnering as its common and traditional sense, with the effect of the issue of possessory of the contract of sale (Arabic: بَیْع, Bayʿ) and principles such as the principle of correctness (validity) and the principle of non- authorization of the impact of termination (repudiation) and at the same time, regardless of the nature and concomitants of the contract of construction partnering, believes that the subsequent termination does not affect the previous pre-sales. In contrast, according to the second point of view that considers the pre-sale of the builder’s share as a contractual and continuous covenant in the construction of condominium contract has different and specific elements than the common and term concept of sale (Arabic: بَیْع, Bayʿ) even with the knowing of ownership of all types of contracts of sale and considering the principle of mutual consent (agreement) and the structure of the construction partnering contract and complete dependence of the pre-sale contract on that contract with the termination of the partnering contract before its enforcement had been cancelled the possibility of delivery of the object of sale in the context of partnering contract as the mother and the basis of pre-sale contracts and pre-sale contracts are subjected into forcible automatic cancellation. This article has proved the second theory by explaining and analyzing the nature of the contract of construction partnering and its relationship with pre-sale contracts in the form of maternal-fetal attachment (MFA) and conditional contract and considering the principle of voluntarism (dominion of will or supremacy of will), and considers as a remover of some legal challenges of pre-sale apartment contracts resulting from construction partnering contract in Iran’s judicial precedent. |
| format | Article |
| id | doaj-art-5759e9958de340f3a466e54bc0464ace |
| institution | DOAJ |
| issn | 2251-936X 2783-3690 |
| language | fas |
| publishDate | 2023-11-01 |
| publisher | Razavi University of Islamic Sciences |
| record_format | Article |
| series | آموزههای فقه مدني |
| spelling | doaj-art-5759e9958de340f3a466e54bc0464ace2025-08-20T02:46:30ZfasRazavi University of Islamic Sciencesآموزههای فقه مدني2251-936X2783-36902023-11-011528275210.30513/cjd.2022.3717.16241638The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominiumghasem eslaminia0KIYAN FULADI1hamidreza parhamehr2Assistant professor of law at University of ZabolAssistant professor of Law at Payame Noor UniversityInstructor of the Department of Law at University of ZabolConstruction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one of the challenging and controversial issues is the repudiation (termination or cancellation) of construction partnering before the construction of pre-sale condominium and its impact on the pre-buyers of the condominium share. The view that considers the nature of the pre-sale contract in the contract of construction partnering as its common and traditional sense, with the effect of the issue of possessory of the contract of sale (Arabic: بَیْع, Bayʿ) and principles such as the principle of correctness (validity) and the principle of non- authorization of the impact of termination (repudiation) and at the same time, regardless of the nature and concomitants of the contract of construction partnering, believes that the subsequent termination does not affect the previous pre-sales. In contrast, according to the second point of view that considers the pre-sale of the builder’s share as a contractual and continuous covenant in the construction of condominium contract has different and specific elements than the common and term concept of sale (Arabic: بَیْع, Bayʿ) even with the knowing of ownership of all types of contracts of sale and considering the principle of mutual consent (agreement) and the structure of the construction partnering contract and complete dependence of the pre-sale contract on that contract with the termination of the partnering contract before its enforcement had been cancelled the possibility of delivery of the object of sale in the context of partnering contract as the mother and the basis of pre-sale contracts and pre-sale contracts are subjected into forcible automatic cancellation. This article has proved the second theory by explaining and analyzing the nature of the contract of construction partnering and its relationship with pre-sale contracts in the form of maternal-fetal attachment (MFA) and conditional contract and considering the principle of voluntarism (dominion of will or supremacy of will), and considers as a remover of some legal challenges of pre-sale apartment contracts resulting from construction partnering contract in Iran’s judicial precedent.https://cjd.razavi.ac.ir/article_1638_7007649c062b1d4d6201f85f4b26f373.pdfconstruction partnering contractrepudiation (termination or cancellation)pre-saleapartmentpossessoryobject of sale |
| spellingShingle | ghasem eslaminia KIYAN FULADI hamidreza parhamehr The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium آموزههای فقه مدني construction partnering contract repudiation (termination or cancellation) pre-sale apartment possessory object of sale |
| title | The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium |
| title_full | The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium |
| title_fullStr | The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium |
| title_full_unstemmed | The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium |
| title_short | The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium |
| title_sort | effect of repudiation termination of the contract of construction partnering on futures trading contracts from jurisprudential legal perspective and the code of pre sale of condominium |
| topic | construction partnering contract repudiation (termination or cancellation) pre-sale apartment possessory object of sale |
| url | https://cjd.razavi.ac.ir/article_1638_7007649c062b1d4d6201f85f4b26f373.pdf |
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