Taking a Voluntarism or Realistic Approach in Analytically Investigating the Influence of Empirical Reality on Contract Establishment and Performance

Type : Research Article

Authors

1 Ph.D. Candidate in Private Law, Najafabad Branch, Islamic Azad University, Najafabad, Iran.

2 Associate Professor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan, Isfahan, Iran.

3 Assistant Professor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan, Isfahan, Iran.

Abstract

Law has a constructed nature; the one which is distinguished from socio-empirical reality. Nevertheless, one can believe in dualism of contructionality and reality providing constructionality is independently thought to be different from reality and each of which has its distinct area. Furthermore, contract has a constructed nature. The question is whether there is an insist on its separation from reality; or what kind of effects would be followed by this independence? As long as this independence resulted in dominancy of contractual constructionality over reality, would it necessarily eventuate to have a fair contract? What are the challenges of pure dependency of contractual constructionality from reality? On the basis of this dependency, can one believe in the transformational and evolutionary function of law, particularly the contract? Denying both dominancy and pure dependency approaches, it sounds in all likelihood that it is the one and only way to keep the supremacy of will principle beside the principle of equity or the principle of the denial of distress and constriction; moreover, we should just emphasize how influenced the contractual constitutionality could be by the reality.

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‌ Timeline

  • Received: 09 February 2021
  • Revise: 09 May 2021
  • Accepted: 28 May 2021

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