Page 94 - Pure Life 29
P. 94
Functions of Custom Law in … H. Andalib / (93
have proved the option of loss; of the option”. (Tabatabaei Yazdi,
but neither of these two 2007: 512-527)
reasons can prove the option He considered the Ertekaz
of loss, therefore, some jurists in option of loss similar to the
have proved the option of loss Ertekaz in option of fault and
by referring to Ertekaz. also wrote, “The imposing
Mohaqeq Naeini (1994) and condition of equality in exchange
Ayatollah Khansari (1985) contracts is not in the form of
considered Ertekaz as an a restriction, the violation of
implicit condition in the which causes the invalidity of
transaction and interpreted it the contract, nor in the form of
as of the complete evidence to a claimant and motive, the
prove the option of loss. violation of which has no
The base of option of loss, executive guarantee; but is an
according to Tabatabaei Yazdi implicit condition of Ertekaz.
(2008) is Ertekaz of transactors. What the jurists have said in
He wrote, “The Ertekazi will the option of defect is the
of the parties to the contract is description of the validity of
based on the fact that there the implicit condition of
must be a balance in financial Ertekaz, and those who trade
value between the parties, and on the basis that they receive
this, although not specified in the goods without defects”.
the contract, is a condition
authorized in the text of the 4. Option of Delayed
contract and violation of it is Payment
considered as a violation of the Ertekaz rule can be considered
condition that causes the proof as one of the principles of
proof in the option of delayed
