Criticizing the Article «Juridical and Legal Review of the Guarantee of the Execution of the Violation of the Negative Condition»

There is a controversy among scholars about the executive guarantee of the Condition of the Leave of a Legal Action. In the article “Judicial and Legal Review of the Guarantee of Infringement of the Condition of the Leave of a Legal Action”, which has been published in the issue of the 13th journal of the Doctrines of civil jurisprudence of Razavi University of Islamic Sciences, the author of the articles of civil law has inferred from the views of the jurisprudents, lawyers and the legal procedure that the of executive guarantee of the condition of the leave of action is the right of cancelation for the person who the condition for him and the right to demand damages. This conclusion is faced with major basic problems because, as the jurisprudents state, first, the fulfillment of the condition in a contract is obligatory. Secondly, the guarantee of the implementation of the condition of legal action is negative or condition of the leave of legal act does not establish the right of cancelation, but it has to be known that the fulfilled act in contrast to the condition is validate, void or not influent. Third, the evidences that have been quoted from jurisprudents are not correct and no jurisprudent believe that the prohibited act is correct. Using the original jurisprudential sources and analytical methods, regardless of the available discussions in the books of principles of jurisprudence, with consideration of the different and, more efficient ways that has been expressed by jurisprudents, this critique concluded that, depending on the fact that whether the former permission would eliminate the prohibition or not, the transaction will be ineffective or invalid. Given to the fact that according to the well-known jurisprudents’ opinion the unilateral dispositions are not made non-influentially, this distinction does not include the unilateral disposition and the guarantee of the implementation of the prohibited disposition is its void.