Document Type : Original Article
Authors
1 Associate Professor, Faculty of Law, Shahid Beheshti University
2 Department of Law and Theology, Islamic Azad University, Semnan Branch, Semnan, Iran.
Abstract
Bankruptcy judgment has the greatest effect on the trader's transactions before and after the date of stop of payment, Article 423 of the Commercial Code adopted in 1311 has annulled the legal actions of the trader in case of reduction or restriction of his property. The basis for the invalidity of these legal acts after the date of cessation is the prohibition of the trader from making a transaction with the intention of evading the payment of creditors' debts, which is rooted in public order. According to the provisions of the Bankruptcy Law in Articles 418, 423, and 557 of the Commercial Code and the legal doctrine and jurisprudence, it can be found that some transactions of the trader after the date of cessation are relatively void; That is, the transaction between the two parties is valid; But it cannot be relied on against creditors and can be revoked. Others, as mentioned in Article 557 of the Commercial Code, are absolutely invalid. In this article, while explaining the rules for recognizing relative and absolute invalidity in the transactions of a bankrupt trader and the different dimensions of these rules, the consequences of each of these institutions in relation to the trader with the parties to the transaction and their relationship with creditors are tried. In particular, third parties should be investigated during and after the liquidation, and the effect of the invalidity of the transactions of the bankrupt trader shall be considered limited to both parties to the contract and the third party shall be protected from the adverse effects of these transactions in good faith.
Keywords
- Al-Khomeini al-Musawi, Sayyid Ruhollah (1996), Tahrir al-Wasila, (translated by Ali Islami), Qom: Islamic Publications Office affiliated with the Society of Teachers of the Seminary of Qom.
- Allama Hali, Al-Hassan Ibn Yusuf (Bita), Tazkereh Al-Fiqh, vol. 2, Qom: Al-Bayt Institute (AS).
- Anvaripour, Mohsen (1966), Bankruptcy in Iranian Law, PhD Thesis, University of Tehran, Faculty of Law and Political Science
- Ahmadi Vastani, Abdul Ghani (1962), Bankruptcy Transactions, Journal of the Bar Association, 80, 117-141.
- Bahrani, Yusuf bin Ahmad (1984), Al-Hadaiq Al-Nadharah in the Rulings of Atrah Al-Tahir, vol 20, Qom: Islamic Publishing Foundation, a subsidiary of teachers.
- Eftekhar Jahromi, Goodarz and Alsan, Mostafa (2021), Civil Procedure, Volume 3, First Edition, Tehran: Mizan Publishing.
- Erfani, Mahmoud (2005), Commercial Law (Bankruptcy and Liquidation), Third edition, Tehran: Volume.
- ESkini, Rabia (2008), Commercial Law, Bankruptcy and Liquidation, 11th Edition, Tehran: Samt Publishing.
- Hert, Oliver, translated by Kaviani, Kourosh and Shami Aghdam, Shahin (2006), Different Approaches to Bankruptcy, Quarterly Journal of Legal Perspectives, Twelfth Year, 40 and 41, 73-90.
- Jafari Langroudi, Mohammad Jafar (2002), Encyclopedia of Islamic Judicial Sciences, Vol. 1, Third edition, Tehran, Ganje danesh.
- Jafari Langroudi, Mohammad Jafar (2007), Extensive in Legal Terminology, Vol. 5, Third edition, Tehran: Ganje danesh.
- Jafari Langroudi, Mohammad Jafar (2009), Encyclopedia of Civil Law and Commerce, Vol. 1, First Edition, Tehran: Ganje danesh.
- Katozian, Nasser (2008), General Rules of Contracts, Vol. 5, First Edition, Tehran: Behnsher
- Kaviani, Kourosh (2016), Bankruptcy Law, First Edition, Tehran: Mizan.K
- Kaviani, Kourosh and Farzaneh, Javid (2014), Comparison of the Effect of Suspension on Bankruptcy Transactions in Iranian Law with the Guide to UNCITRAL Bankruptcy Law, Journal of Legal Knowledge and Research, 6, 140-199.
- Mohseni, Saeed and Pazafi Darafshan, Seyed Mohammad Mehdi (2010), The Concept and Effects of Relative Invalidity, Journal of Knowledge and Development, 33, 245-270.
- Mohaghegh Damad, Mustafa and Islami, Maryam (2010), A Study of the Rulings on Stone and Bankruptcy in Islamic Jurisprudence and Law, Letter of Theology, 10, 117-128.
- -Najafi (Saheb Javaher), Mohammad Hassan (1983), Javaher al-Kalam Fi Sharh al-Sh’aria al-Islam, Vol. 25, Beirut: Dar al-Ehya al-Toras al-Arabi.
- Rahimi, Musa and Rahimi Dehsouri, Reza (2017), Goodwill in Contracts (with a jurisprudential approach), First Edition, Tehran: Judiciary Press and Publications Center.
- Shoarian, Ebrahim (2016), Law of Obligations; A Comparative Study of the Amendment Plan of French Law of Obligations with Iranian Law and International Documents, Second Edition, Tehran: Shahr-e Danesh.
- Shahidi, Mehdi (2001), Principles of Contracts and Obligations, Civil Law, Vol. 2, Second Edition, Tehran: Majd.
- Sheikh Tusi (1407 AH), Al-Khalaf, vol. 2, vol. 3, Qom: Islamic Publishing Institute.
- Saghari, Mohammad (1997), Commercial Law and Bankruptcy, First Edition, Tehran: Anteshar Co.
- Sajjadi, Mehdi and Amsaki, Navid, (2021), The jurisprudential approach to the precedence of official documents over the ordinary in the system of Islamic jurisprudence (proposal to amend the law on document registration), Journal of jurisprudence and Islamic law, 13th year, 25, 289 - 311.
- Sokooti Nasimi, Reza, (2017), The condition of the result and the jurisprudential-legal status of transactions in opposition to it, Journal of jurisprudence and Islamic law, Ninth Year, 16, 227.
- Roshan Mohammad and Mozaffari, Mostafa (2010), A Study of the Effects of Bankruptcy and its Removal, Private Law Studies, 13, 71-89.
- -Tafreshi, Mohammad Issa (1997), The effect of bankruptcy judgment on the transactions of a bankrupt businessman according to the principles and foundations of law, Lecturer of Humanities, 5, 54-74.
)