Context & Objective: In classical contract law, the pre-contractual phase was largely marginalized and viewed as an unregulated domain based on the theoretical assumption of absolute rational and informational equality between negotiating parties. Under this framework, silence regarding crucial information was considered a permissible manifestation of contractual freedom. However, structural economic transformations have demonstrated that informational parity is frequently an illusion, and consent formed in ignorance lacks the normative quality necessary to legitimize a contract. Consequently, contemporary legal doctrine has shifted toward contractual justice, recognizing that contractual freedom possesses legal value only when exercised within a balanced informational environment. A primary manifestation of this shift is the identification of the obligation to provide pre-contractual information, designed to counteract information asymmetry and guarantee informed consent. Following the 2016 civil code reforms, French law explicitly acknowledges this duty under Article 1112-1. Conversely, Iranian law lacks a general rule regarding the pre-contractual duty to inform. Nevertheless, legal mechanisms such as tadlīs (intentional deception), harmful silence, and civil liability, alongside jurisprudential foundations like the rules of ġurūr (misleading leading to liability), lā ḍarar (the principle of no harm), and the prohibition of akl māl bi-al-bāṭil (consuming wealth unjustly)—which represent one of the most important principles of Islamic contract law—provide the capacity to protect informed consent. The objective is to explain the theoretical foundations of this duty and examine its position, function, and sanctions within both legal systems.
Method & Approach: A comparative analytical approach and a doctrinal methodology are utilized. The theoretical foundations of the duty to inform in the pre-contractual stage are explained, followed by an examination of its position and function within the new French law and Iranian law.
Findings: The 2016 French civil code reforms transformed the pre-contractual duty to inform into a general, explicit statutory rule under Article 1112-1. French law penalizes intentional silence regarding essential information that determines the other party's consent, provided the uninformed party is legitimately ignorant. The French doctrine establishes a clear boundary between permissible silence and liability-inducing silence, enforcing this duty through pre-contractual civil liability for damages and the annulment of the contract if the withheld information vitiates consent. Conversely, Iranian law operates without a general, independent legislative rule regarding this pre-contractual duty. Protection against information asymmetry in the Iranian system relies on traditional institutions such as tadlīs, harmful silence, and general rules of civil liability. Since tadlīs traditionally requires active deceptive operations, it struggles to encompass intentional silence, limiting its capacity as a comprehensive protective rule. Despite this absence in the general theory of contracts, specific Iranian domains demonstrate progressive regulatory shifts, such as the Electronic Commerce Law of 2003 and the Securities Market Law of 2005, which impose explicit pre-contractual disclosure obligations. Both legal systems align in their normative objectives to protect contractual justice and ensure transactional balance. The fundamental divergence lies entirely in their level of legislative formulation and the institutionalization of this obligation.
Conclusion: A normative analysis demonstrates that recognizing and developing a cohesive pre-contractual duty to inform within Iranian law is viable and does not contradict traditional jurisprudential foundations. Existing principles dictate that acquiring wealth through the deliberate exploitation of a negotiating partner's legitimate ignorance is legally impermissible. The pre-contractual duty to inform represents a necessary evolution from absolute formal autonomy to responsible autonomy, ensuring that contractual freedom does not facilitate informational exploitation. To institutionalize this obligation within Iranian law, a dual strategy is required. First, the judicial system must actively interpret existing concepts, such as civil fault and the implicit necessity of good faith, to penalize intentional, harmful silence. Second, targeted legislative reform should establish a general, flexible rule that mandates the disclosure of determinative information and sets proportional sanctions. This structural development will transition the Iranian system from relying on fragmented, reactive protections to establishing institutionalized, preventive contractual justice.