Volume 25, Issue 4 (2021)
CLR 2021, 25(4): 123-147 |
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Nootizehi M H, Ghanavati J. Studying the Contractual Mistake in Iranian and English Legal Systems Based On the Objectivism and Subjectivism Approach. CLR 2021; 25 (4) :123-147
URL: http://clr.modares.ac.ir/article-20-55244-en.html
URL: http://clr.modares.ac.ir/article-20-55244-en.html
1- Ph.D Student in Private Law, Farabi Campus of Tehran University, Qom, Iran , m.nootizehi@ut.ac.ir
2- Associate Professor in Private Law, Faculty of Law, Farabi Campus of Tehran University, Qom, Iran
2- Associate Professor in Private Law, Faculty of Law, Farabi Campus of Tehran University, Qom, Iran
Abstract: (768 Views)
An important condition for a contract to be concluded, is the agreement of the parties; but this agreement may be disrupted due to a mistake. Recognizing a contractual mistake and locating the boundaries of which is done based on two approaches: Objectivism and Subjectivism. According to the subjective approach, the parties' mentality and attitude state forms the contract, and in case of a contradiction in their mentality towards the contract, their mentality state is given precedence. But, in the Objective approach, objective criteria determine the conclusion of the contract in case of having disagreements, and the contract is concluded based upon the parties' apparent agreement. The key question addressed by the authors in this essay is that which of the aforementioned approaches is used to identify the contractual mistake and establish the parameters of its indemnification under legal systems of Iran and England? Contrary to what is generally said, Iran's legal system is Objective just like the England. In this research, which is based on the analytical-descriptive method, the authors first identify the basic similarities and differences of Iranian and English legal systems, and by examining the issues related to contractual mistake, by rejecting the purely subjective approach, they identify the state of objectivism in the two mentioned systems.
Keywords: Mistake as to the Subject Matter of a Contract, Mistake as to identity of Contracting Party, Objectivism, Subjectivism.
Article Type: Original Research |
Subject:
Comparative Law
Received: 2021/08/30 | Accepted: 2022/07/10 | Published: 2022/08/11
Received: 2021/08/30 | Accepted: 2022/07/10 | Published: 2022/08/11
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