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The Application of Asl-Al- Ta’akhor Al-Hades ( posterior occurrence) Principle in Risk Passing of Sale Transit in the Contracts of Sale of Goods

Abstract

The transfer of risk is a significant issue in contracts of sale that can lead to disputes between the parties concerned. Reflecting the stringent nature of such contracts, the buyer must pay the contract price even if he receives damaged goods, or the goods are totally destroyed. Although the United Nations Convention on Contracts for the International Sale of Goods (CISG) ratified in 2010 namely the Vienna Convention allows exporters to avoid choice of law issues, determining the exact time of the loss of the goods in transit is an outstanding issue that has already left unsolved. Applying the Islamic principle of Al-Asl Al-Ta’akhoral-Hades (posterior occurrence) and Iranian Civil Code 1936, there exists a mechanism to resolve such disputes. Based on this principle, where two incidents occur, and the time of the occurrence of one of them is clear, but the time of the occurrence of the other is uncertain, the event whose time of occurrence is uncertain is taken to have happened after the one whose time of occurrence is certain. This paper is going to scrutinise the application of Ta’akhor Hades principle to resolve international disputes regarding the issue of uncertainty in the exact time of the loss of the goods in transit.

Parviz Bagheri

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