نوع مقاله : مقاله پژوهشی
نویسندگان
1 استاد گروه حقوق خصوصی و اقتصادی ،دانشکده حقوق و علوم سیاسی، دانشگاه علامه طباطبائی، تهران، ایران
2 دانشجوی دکتری حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه علامه طباطبائی، تهران، ایران
کلیدواژه‌ها
عنوان مقاله English
نویسندگان English
1. Introduction
Every contract is based on a set of assumptions and mental perceptions of the parties regarding reality; perceptions that serve as the motive and foundation for the decision to conclude an agreement. These beliefs, which can be mutual or unilateral, concern various dimensions of the contract, including the subject matter, the identity of the counterparty, the purpose, and the governing regulations. Occasionally, these perceptions do not align with reality, creating difficulties in contractual relations that have led to the formation of the complex topic of "mistake" in contract law. In the Iranian legal system, the rules governing mistake are primarily justified based on the impairment of intention and consent. However, it appears that this foundation alone cannot adequately cover all dimensions and complexities of the issue, particularly in modern commercial relations. Managing uncertainty and allocating risk between the parties is an important function of a contract. Analyzing the doctrine of mistake without considering how the parties have allocated the risk of discrepancy between reality and their perceptions would be incomplete. When parties transact in an environment of uncertainty with awareness of their imperfect information, or when they expressly assume the potential consequences of an error, their perceptions are formed not on certainty but on the basis of probabilities. In such a scenario, the discovery that their perceptions were mistaken is the realization of a risk they had previously assumed.
2. Literature Review
Legal logic and the necessity of transactional stability dictate that if a party has assumed the risk of mistake, either expressly (e.g., through exemption clauses) or impliedly (by implication of custom, the nature of the transaction, or acting in a state of doubt), they cannot annul the contract by invoking the doctrine of mistake. This logic has led leading legal systems, such as those of the United States and France, as well as international documents like the UNIDROIT Principles and the Principles of European Contract Law (PECL), to recognize the "non-assumption of risk" as a fundamental condition for invoking mistake. In Iranian law, however, this condition has not been explicitly stated under its specific title in statutory texts and doctrine. Despite the fundamental importance of this topic, no comprehensive research has yet been conducted on the feasibility of applying the rule of risk assumption to contractual mistakes within the context of Iranian law. The innovative aspect of the present research lies in addressing these neglected considerations regarding risk assumption, which can reveal new and different dimensions of the debate on mistake in legal literature.
3. Materials and Methods
The present research employed a descriptive–analytical method. It also relied on library sources to collect the data and present the discussion.
4. Results and Discussion
The research findings indicate that, contrary to initial assumptions, the Iranian legal system is not alien to the concept of risk assumption in contractual mistakes. Rather, this concept is actively present through traditional and indigenous institutions such as the "waiver of options" (isqāt-al-khiyārāt) and the "rule of action/assumption of risk" (qā'idah al-iqdām). The primary challenge arises when the broad application of this theory sometimes requires entering into a transaction with a degree of ignorance and uncertainty regarding the subject matter, which initially appears to conflict with the rule of "prohibition of gharar." This conflict, particularly concerning mistakes about the fundamental conditions for the validity of a contract (such as economic value and deliverability), can lead to the invalidation of rational and efficient commercial contracts. For example, if a marine salvage expert purchases a stranded ship at a very low price, fully aware of the risk that refloating it might be impossible, and subsequently fails in the salvage operation, their invocation of the lack of deliverability and the subsequent nullity of the sale lacks economic justification. This is because the expert buyer assumed the risk of their perception being mistaken, and this risk was reflected in the contract price.
The research findings indicate that the widespread acceptance of aleatory and risk-based contracts in Islamic jurisprudence and statutory law (such as insurance, ju'ālah, and partnership contracts) indicates that gharar is a "customary" concept influenced by economic necessities. Not every risk or instance of ignorance constitutes gharar. Prohibited gharar is a risk that custom deems intolerable and gambling-like (a zero-sum game). However, if entering a transaction with ignorance is based on skill, expertise, commercial calculations, and value creation, and uncertainty is considered an inherent part of the economic essence of the transaction, the nature of the act shifts to a "reasonable risky investment" (a positive-sum game) that the legal system must recognize as valid.
5. Conclusion
In conclusion, it can be stated that within the framework of the current regulations of the Iranian legal system, and relying on the rule of iqdām, the waiver of options, and most importantly, a precise and customary interpretation of the concept of gharar, the rule of "assumption of risk of mistake" can be applied and justified. To ensure the stability and security of transactional relations, it is recommended that, based on distinguishing "invalidating gharar" from "legitimate risk" in cases such as mistake in economic value or deliverability, if it is established that the parties consciously assumed uncertainty in a rational context and based on expertise, the matter should be excluded from the scope of invalidating gharar and the realm of mistake. Nevertheless, it is appropriate for the Iranian legislature, in alignment with leading legal systems, to explicitly stipulate the "non-assumption of risk" as a statutory condition for invoking mistake.
کلیدواژه‌ها English
