Document Type : Research Paper

Authors

• Mohammad Abedi ¹
• Morteza Rahimimomen ²

¹ Associate Professor, Department of Private Law, Ferdowsi University of Mashhad, Mashhad, Iran

² Ph.D Student in Private Law, Ferdowsi University of Mashhad , Mashhad, Iran.

Abstract

The purpose of approval building pre-sale law approved in 2010 is to provide protection and secure the rights for buyers, subsequent buyers and third parties. According to article 9 of the law, seller is held responsible for damages caused by defects in the building and its equipment and also non-compliance with legal regulations and laws. Furthermore, insuring the building is mandatory. Questions arise about the nature of responsibility in terms of contractual and Non-contractual and the possibility of combining or selection of the two, the scope of the damage caused by a defect, combining of the mentioned law with regulations option of defect and effects and provisions of liability insurance. This research using a descriptive analytical method intends to prove that the seller's liability for any losses, regardless of the existence or absence of a contract can be fulfilled and he/she is responsible for the defect and the damages that were caused by the defect and compensation method for both cases is subject to the general rules of responsibility and the provisions of the option of defect cannot be applied here. Also, the compensation of each injured party is paid by compulsory liability insurance within the framework of the insurance contract and after the payment of compensation, insurer can refer to the person who is held responsible for the accident and is not covered by the insured person.
The main issue in this research is the liability for damages caused by defects in buildings and equipment in the building pre-sale law. There have been good researches about the manufacturing defect and the damage caused by it, but in none of them, the damage caused by the construction defect has not been specifically analyzed considering the pre-sale law of the building.
Regarding damages caused by buildings, animals, and vehicles in Iran's legal system, there are legal precedents that precede the pre-sale law of buildings, and it is appropriate to pay attention to these laws when discussing the concept of damage caused by building defects, in order to use the basics. They and generally benefit from the general rules of liability caused by the object, to provide a better interpretation of the damage caused by the defect according to the pre-sale law of the building.
According to Article 9 of the Building Pre-sale Law, the pre-seller is responsible for damages caused by defects in construction and equipment, as well as damages caused by non-compliance with legal regulations. While there is doubt about the scope of the concept of damage caused by the defect and the combination of the said sentence with the provisions of the civil law. In addition, the scope of the responsibility of the seller has gone beyond the defects of the building and equipment and has been expanded to the damage caused by non-compliance with the legal equipment. Considering that the word damage is used in its absolute meaning, it can include all types of damage: damage to property, moral damage, physical injury and also economic damage; Therefore, it is necessary to check the inclusion of the building pre-sale law for each type of damage.
One of the most important issues in the discussed field is the nature of liability for damage caused by building defects. The responsibility of the pre-seller may sometimes be caused by breach of contractual obligations and have a contractual nature. But sometimes there is no contract in the field of damage caused by construction defects in the relationship between the seller and the buyer, and sometimes the third parties who suffer damage due to the construction defect do not have any contractual relationship with the seller, and therefore the responsibility is non-contractual. Here, the pre-sale law of the building makes the pre-seller responsible for damages, without the basis of this responsibility being clarified. In addition, the legal requirement for the seller to obtain liability insurance is foreseen, which must be studied in its nature and effects as well as the insured beneficiary.
The pre-sale law of the building has protected the pre-buyer and third parties against the damages caused by the defect. Regardless of the fact that due to the existence of a defect, the injured party suffers economic loss, or the defect becomes the source of other losses. The study of Article 9 of the aforementioned law shows that a defect is any defect that causes a reduction in price or a reduction in conventional use; Whether it is in the building itself or the equipment used in the building, even non-observance of the legal regulations that will reduce the price of the building or reduce the conventional utility is also guaranteed. Defects or defects that cause the positive property of the contracting party not to increase or his negative property to increase are considered as economic loss and as a defect in its customary sense, it is subject to the ruling of the law.
 

Keywords

• Damage caused by a building defect
• the building pre-sale law
• the building pre-sale contract
• option of defect
• Liability insurance

Main Subjects

• Private and Islamic Law