نوع مقاله : مقاله پژوهشی
1 استادیار گروه حقوق، دانشگاه پیام نور مرکز البرز، البرز، ایران
2 دانشجوی کارشناسی ارشد حقوق خصوصی، گروه حقوق خصوصی، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران(نویسنده مسئول)
عنوان مقاله [English]
Istisna is a contract with two effects of transferring possession of the object and the obligation of the constructor to make or change a new good. In terms of its nature and its validity, this contract has been a matter of argument. Although most lawyers are reluctant to revoke such a contract under Article 10 of the Iranian Civil Code, they however disagree about the independent and specific nature of this contract. This article through a descriptive-analytical methodology and in a qualitative nature attempts to examine this contract through legal materials of some Arab countries as well as the five main jurisprudential sects of Islam. The result shows that Istisna in contemporary law is an independent contract. Although some legal sources have not led to the recognition of a precise contract and yet many of the definite rules and principles of this contract need to be explained and conceived. However, Istisna as a legal entity in the contemporary world is evaluated with the Convention on International Contracts for Sale of Goods, 1980 (CISG). Finally, it is suggested that to support special contractual relations between artisans and entrepreneurs, as for the silence of Articles 513 and 338 of the Iranian Civil Code, this contract should be revealed as a special contract in the Iranian Civil Code.