Non-Establishment of Misrepresentation by Silence and Abstention from Disclosing Defects at the time of Making Contract: A Study in Imamiya Jurisprudence and Iranian Civil Law

‌ ∴ Introduction ∴ ‌
The occurrence of misrepresentation (tadlis) resulting solely from silence or the abstention from disclosing defects during contract formation is a point of significant divergence among legal scholars and Imamiya jurists. While the Iranian Civil Code (Article 438) broadly attributes misrepresentation to 'Operations' that cause deception, it lacks explicit provisions regarding silence. A critical dispute exists in jurisprudence regarding the definition of deceptive 'Operations'; some jurists include intentional silence as an omission (tark) constituting concealment of a defect, leading to misrepresentation, while others strictly require an active commission of a deceptive act (fe’l). Although most jurists base the religious ruling concerning non-disclosure on principles related to deception (ghash) and misrepresentation, this application has faced criticism because conventional concepts of deceit typically involve deceptive actions (such as mixing goods) and usually require clear proof of the silent party's intent to deceive (qasd-e farib) or bad faith.

‌ ∴ Research Question ∴ ‌
The core research question addresses whether misrepresentation (tadlis) can be established solely by a party's silence or abstention from disclosing a defect in the subject matter of the contract. The study critically investigates and evaluates the divergent jurisprudential perspectives to ascertain the quality of the theoretical foundations underlying the claim that silence constitutes misrepresentation. It seeks to determine if reliance on misrepresentation in cases of mere silence possesses substantial legal support or if it rests largely upon prevailing jurisprudential reputation (shuhra fiqhiyya).

‌ ∴ Research Hypothesis ∴ ‌
The article hypothesizes that the view supporting the establishment of misrepresentation by silence lacks convincing jurisprudential and logical justification. The hypothesis suggests that while a seller’s knowledge of a defect may exist, the essential element of an intent to deceive (qasd-e farib), which is central to misrepresentation, is not customarily proven or logically required by mere silence. Consequently, the article anticipates concluding that the suitable remedy for non-disclosure of defects lies not in the "option of misrepresentation," but rather in the application of the Khiyar al-'Ayb (Option of Defect), a long-established positional ruling in Imamiya jurisprudence.

‌ ∴ Methodology & Framework, if Applicable ∴ ‌
This research employs a descriptive-analytical method based on the systematic gathering of library sources. The analytical framework involves a multi-part critique of the prevailing views. First, the study analyzes the historical efforts by Imamiya jurists to reconcile the nature of silence with the concepts of ghash (deception) and tadlis. Second, it assesses the arguments for and against establishing the material and psychological elements of tadlis through silence. Crucially, the framework distinguishes the nature of tadlis (active application of a pre-determined rule to a specific case) from Khiyar al-'Ayb (a remedy for the existence of a defect, regardless of deception).

‌ ∴ Results & Discussion ∴ ‌
The results demonstrate that tadlis requires a deceptive operation, which silence—being merely a tark-e qowl (failure to speak)—fails to satisfy, as it only prevents the correction of an error rather than actively causing the error. The crucial psychological element of deliberate intent to deceive is often missing in mere silence, even if the party is aware of the defect. Insistence on misrepresentation by silence often relies on custom or jurisprudential reputation rather than robust legal foundations. However, the discussion notes limited exceptions where silence may amount to misrepresentation, such as in specialized contracts requiring high standards of good faith (e.g., insurance contracts) or where a party is expressly designated as an 'amin' (trustee). For ordinary contracts, the religious prohibition against simple non-disclosure has not been established before many Imamiya jurists.

‌ ∴ Conclusion ∴ ‌
The article concludes that the establishment of misrepresentation (tadlis) by silence or the abstention from disclosing defects lacks convincing legal foundation. Conceptually, silence does not fulfill the requirement of a deceptive act (operation), which is necessary for misrepresentation under both Imamiya Fiqh and Article 438 of the Iranian Civil Code. Consequently, the correct positional ruling (hukm wad’ī) for cases of non-disclosure is the 'option of defect' (Khiyar al-'Ayb). This conclusion affirms the practical solution adopted in Imamiya jurisprudence to address the consequences of defects, independent of the difficult and often unprovable element of fraudulent intent.