The effect of certain decisions in the narrowness of the trustee's responsibility

Document Type : Original Article

Authors

1 Assistant Professor, Department of Law, Kashan Branch, Kashan Islamic Azad University, Iran

2 Master of Private Law, Sabzevar Branch, Islamic Azad University, Sabzevar, Iran

Abstract

In many trust contracts, including deposits, the condition of non-responsibility of the trustee (restriction of the trustee's responsibility through a private contract) may be included. Non-responsibility clause or non-guarantee clause is a condition by which all liability resulting from non-performance of the contract or its delay before the breach of the contract occurs and damage occurs, is removed and destroyed. Regarding the condition of the non-responsibility of the trustee, two theories have been proposed. First, the theory of invalidity of the condition based on the fact that the said condition is unreasonable and against public order and is illegal. Second, the theory of the validity of the condition, which is the most logical theory because there is no reason for the invalidity of such a condition, and what has been said about the invalidity of this condition cannot be cited, and the rule of conditions and the rule of dominance are among the reasons for proving the validity of the mentioned condition. The trustee's responsibility is to compensate the private damage of the owner and has nothing to do with public order. The condition of non-responsibility is like the permission of the owner in the loss of property, and since he has voluntarily destroyed the respect of his property, as a result, there will be no guarantee.

Keywords

References

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Journal of Studies in Islamic Law & Jurisprudence
Volume 15, Issue 31
August 2023
Pages 293-316

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