تلاشی برای ساماندهی نظریۀ عدم نفوذ مراعی

  This article tries to justify the theory of ineffectiveness of Mora’a [1] the purpose of the article is to explore the theory together with its justification and to introduce it as a legal rule. In the article we make clear the difference between ineffectiveness of Moghoof [2] and Mora’a in both legal and consequential aspects, and when the theory of ineffectiveness of Mora’a can be applied? Our conclusion is that contrary to Moghoof in contracts, for Mora’a in contracts to be effective there is no need for the permission of those who enjoy rights in the contract, but it suffices to ensure their rights later for the contract to remain effective. Therefore, we believe such a contract shall become automatically effective, even if the holder of the right/s had rejected that Mora’a contract. In contrast, a Mora’a contract is ineffective when the contract is against a third party and his rights or ownership are not taken into consideration.   By studying all implications of this legal concept, it seems that the ineffectiveness mentioned in the judgment of the General Council of Iran Supreme Court (Court of Cassation) in its verdict No. 620 dated 20/09/1376 (11/12/1997) means they saw a contract of Mora’a ineffective. On the other hand the concept of impossibility to invoke, which is imported to Iran legal system as theory of “Impossibility”, has no more implication taking into account the theory of ineffectiveness of Mora’a. My suggestion is to use the word “ineffectiveness of Mora’a” with its original and domestic meaning.   2 -This theory deals with the rights of third parties in contracts.   3- This concept deals with the rights of the parties to the contract.