World appl. programming, Vol(4), No (4), April, 2014. pp.

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A Research on Religious Jurisprudence Regarding Option of

Deception
Forouzan Alaeinovin*
PH.D .Department of Religious Jurisprudence and Islamic law, Karaj branch, Islamic Azad University, Karaj, Iran

Gholamhossein Kiani
Department of Religious Jurisprudence and Islamic law, Karaj branch, Islamic Azad University, Karaj, Iran
*Corresponding author: Forozan.novin@yahoo.com

Keywords
Deception
option of deception
sanctity
using forbidden property
principle
no harm
deceiver
deceived

1.

Abstract
Almost in every legal system, Jurists have paid special attention to the subject of necessity
and sanctity of contracts. However, accepting the effects of changes in conditions poses an
exception to the sanctity of contracts. Options allow parties of the contract or judges to
revise, make changes or cancel the contracts. Option of Deception, khiar-e ghabn, exists to
prevent loss.Deception, ghabn, is about giving away ownership of a property in exchange for
a property of a lesser value. The one who has taken the more valuable property is called the
Deceiver, ghaben; and the one who has taken the less valuable property is called the
Deceived, maghboun. There are three necessary elements for deception to have occurred:
First, great significance of value in common parlance, collapse of balance between the
values, and emergence of a great discrepancy of values; Second, existence of deception at
the time of contract; Third, ignorance of the Deceived about the real value of the object of
the exchange.Therefore, under such condition, Option of Deception occurs for the
contracting party in the realm of contracts of exchange where loss is feasible; but it does not
occur in exchanges of free items or the situations of neglect. This Option (of deception) is
not limited to property contracts; it is also applicable to covenant contracts as well.The
Deceived cancancel the contract or collect the difference. Islamic jurists call the
compensation sum arsh.In this vein, the Verse We have forbidden you consumption of
property which has been acquired immorally is a general principle and a major point of
reference in Islamic jurisprudence. This principle overshadows other issues and there are
many applications for such an overarching holy verse including Optionof Deception.
Similarly,the principle of no harm in Islam (la zarar.. ) is the most suitable principle that
applies to justify civil regulations and is the yardstick in establishing contracts and it
supports the notion of Option of Deception. It can prevent deception to happen in the process
of contracts. To guarantee performance of Option of Deception, given the spirit of our laws,
and concurrence of justice and free will, there exists the notion of possibility of cancelation
of contracts as a practical solution.Cancellation of contracts seems to be the easier and
preferable solution.

Introduction

The legal definition of Deception is the surplus that, as a result of the contract, due to discrepancy between the values of two items, benefits
one of the two parties. In religious jurisprudence, Deception is about giving away possession of a property to a pricemore than its value due
to ignorance of the other party. The one who sells the property is called Deceiver, and the other party is called the Deceived. However, there
may not be, necessarily, a deception at work. It could be the result of both partys ignorance of the real market value of the item. Either way,
when the loss becomes obvious at the time of contract, the Deceived has the right to cancel it through the Option of Deception.One of the
foundations of this Option is no harm principle, la zarar,; the other principle is inspired by refraining from consuming others property
expressed in the holy verse do not use up your wealth idly, squandering it on one another, unless it is for some business based on mutual
consent among you(Quran 4:29); and the Hadith related to talagha rokbanwhich gives the right to cancel the contract to the one who has
been deceived.
Option of Deception is not one of the general principles of contracts to be widely interpreted. The rule is necessity of contracts, cancelation
of contract due to Option of Deception or any other Option is the exception to the rule. It should be interpreted narrowly and be limited to a
certain level. Since the Civil Code and the source of its formulation (Imamieh jurisprudence) have consideredDeception as valid only at the
time of the contract, not later; one cannot extend the Option to a later time, after the contract.

2-Meaning of Deception

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The word ghabn, written with the vowel point(a) on gh and silent bmeans: to deceive, trick, and breaking the covenant (Tarihi, n.d.Vol.6,
P.288). From Imamieh jurisprudence perspective, anytime there is selling of property above its actual market value, while the purchaser is
unaware of it, Deception has happened. In case of great difference, the Deceived has the right to cancel the contract. Deception as a legal
term, and is about selling of a commodity in exchange for a commodity of a lesser value, due to ignorance of the party who is unaware of the
real value of that commodity, according to conventional norms. The one who has benefited from the transaction is called the Deceiver; and
the one who has taken less, the Deceived.

3-The bases on which Deception is Realized

3-1- There has to be an exchange contract, for two commodities to be exchanged, so that deception can occur.
3-2 -Considerable discrepancymust exist between the values of the two commodities, which would disturb the monetary balance in
exchange.
3-3- Lack of balance at the time of transaction,
3-4- Ignorance of the Deceived about the real values (Katouzian, Vol. 5, P.209)

4-The Scope of Deception

It seems Deception is not absolute and is limited in two ways:
4-1- Existence of Deception must fit in the nature of the dispute. As stated, Deception occurs in exchange contracts; and is limited within this
realm to the cases when it is not due to nonchalance. Therefore, nonchalance cannot justify deception in conflict resolution. Also in an exchange
contract which occurs in nonchalant atmosphere and determination of values are postponed to a future time.
4-2- Practical regulation: According to the Directive issued by The Office of Real Estate and Deed Registrations, Official Documents
Registration Bureaus must mention in the property transfer documents that every Option, including Option of Deception has been exhausted.
Such a statement annuls the Option of Deception.(Article 448 of Civil Code)

5- The Meaning of Option (khiar)

Literally, option means leaving something open to choice, and in [legal] terminology, it means the ownership of nullifying the contract. It means
having the option to cancel a contract or keep a contract intact.

6- Causes of Deception
Means of Deception are three types:
5-1 It is a matter related to the objects of the exchange, price and priced (saman&, mosamman respectively); like Option of Flaw (khiar-e eib),
Option of Deception and Option of Sight (khiar-e Royat).
5-2 It is a matter related to the process of contract, set by lawmaker, like the Option of Meeting Place (khiar-e Majles), and the Option of Animal
(khiar-e Heivan).
5-3 It is a matter related to the parties, and its an agreement between them, like the Option of Condition. When the time of the time of the
Option is over, and no one has used the option, the contract must be executed (Feiz, 1995, P.313).

7- Option of Deception
Option of Deception is devised to offset the imbalance in contracts. Therefore, by removing the order of finality from the contract, the Deceived
can remove the element of loss. It makes it possible for the one who has suffered the loss to cancel the contract; or through a new agreement with
the Deceiver compensate for the price difference. Alternatively, the Deceived can receive the price difference and keep the contract as it is.
(Articles 416 and 417 of the Civil Code)

8-Religious Jurisprudence on the Option of Deception

There is no explicit reference to Option of Deception in the Quran or informing Hadiths(ekhbar) and some jurists, such as Askafi and
Mohaghegh-e Avval, have denied existence of such an option. However, some contemporary jurists, basing their argument on other principles
and teachings, have accepted and confirmed the notion. Some of the reasons used to prove this Option are:
8-1 The holy Verse (Quran 4:29). Some Jurists have referred to the second part, unless is for some businessbased on mutual consent, and believe
that consent of the Deceived, in an unfair contract,may be obtained through payment of the compensation for the loss. Otherwise the contract
lacks the element of mutual consent.
8-2 The most important proof for this option, from Sheikh Ansaris view, is the element of necessary consent in contracts .His view has been
confirmed by most jurists who have also quoted him (Ansari, P.235).

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8-3 The Hadith talagha rokban : According to this Hadith, at the time of Blessed Prophet, merchants would approach the caravans, before their
arrival in the city, before their knowledge of the prices, using their ignorance about the market value of their merchandise, and started buying
from them. Such commerce often resulted in the sellers being deceived. The traveling merchants received the Option of Deception and by the
Prophet and were able to cancel the contract.
8-4The Principle of no harm(la zarar): This principle is a secondary decree which negates the firstnecessary, harmful, decree. Therefore,it is
always necessary and stands in contracts. But in the deceptionridden contract, if we believe in its validity of the contract, and believe in the lack
of Option of Deception for the Deceived (to cancel the contract); it will result in a loss for him. And since there are no harmful decrees in Islam,
then secondary principle of no harm eliminates the primary decree which is necessity of a keeping a Deception ridden contract (TabaTabae
,P.76).
But it has been said that: Although the no harmHadith eliminates sanctity of the contract, yet it does not necessarily create the Option for
cancellation for the Deceived. However, it relieves the deceived from executing harmful contract. In rebuttal, it has been argued that the
necessity of the no harm principle, removes the harmful decree. And always, in these situations, it is the contract that causes harm. Therefore,
with its elimination, the Option of Cancelation for the deceived is created.
Irans legal system, especially its Civil Code, while benefitting from judicial achievements of other nations, is firmly based on Islamic
jurisprudence. Also, necessity of compensation for loss, one the oldest concepts in jurisprudence, has inspired other principles. Therefore, loss
without compensation cannot have legitimacy; it is for such a firm and respected principle that Islam has instituted the no harm principle. Such
a principle has various implications beyond the scope of civil responsibility in its common understanding.

9- Identifying the Plaintiff and Respondent Based on Islamic Jurisprudence

There are various measures which are utilized for identifying Plaintiff and Respondent. Obviously, plaintiff in a deception case is the one who
claims that there is discrepancy between the contracted price and the market price, and such a discrepancy had existed since the time of the
contract. Seeking the opinions of the experts and inquiries from those who are familiar with the prices, courts try to settle the matter. The one
who claims the loss, also, seeks the same information. If the price discrepancy is confirmed, but there is doubt about existence of price
discrepancy at the time of the contract, the Option of Deception cannot be established.

9-1 Deceived as Respondent and Deceiver as Plaintiff

According to some jurists, the onus of proof regarding ignorance of the market price is not on the Deceived. They have offered various reasons
for their claim:
9-1-1 Principle of Lack of Knowledge: Based on the measure which determines plaintiff and respondent, the Deceived has a claim based on
lack of knowledge; while the other party, the Deceiver, has stated the opposite. Therefore, the Deceived acts as respondent, and the Deceiver acts
as plaintiff. Lack of knowledge, is a matter caused by other matter, and takes precedence over necessity of contract, which is a matter that has
caused the situation.
9-1-2 The Burden of Proof: The Deceived claims ignorance of the market value. If his statement is not accepted, and he is situated on
plaintiffs seat, how can he show his ignorance? How can he be guided by the rules governing the standards of proof? The Deceived is not able
to prove his thought process and there are not many external evidences that he can rely on. The only chance for the Deceived to win the case is
Deceivers confession. Therefore, the wisdom of Option of Deception is nullified, and its goal is not realized. (Ansari, Vol. 5, P.169)
9-1-2-2If the Deceived, acting as Plaintiff, has to prove his lack of knowledge, and the Deceiver is exempt from the onus of proof, and the
Deceived cannot present a proof for his claim, at the final phase must rely on respondents oath, but the problem is that the respondent
(Deceiver) cannot prove knowledge or ignorance of the Deceived to be able to swear on it! The Deceiver was not present in the deceived ones
thought process and cannot swear! (Ansari, Vol.5, P.169)
9-1-2-3 Ifthe basis of the Option of Deception, is creating a condition of balance amongst parties; the Deceived will be in the position of denial,
because the Deceiver claims that the Deceived has nullified his option; but the Deceived denies the collapse of the Option (Tabrizi, 2009, Vol.4,
P.17)
9-2 Deceiver as the Respondent, and the Deceived as the Plaintiff
9-2-1 Appealingto the Necessity of the Contract :After realization of the contract, the Deceived claims that the cause of collapse of the
contract has emergedbecause he had been ignorant of the just price. The Deceived ones purpose is to remove the element of necessity and
certitude of the contract and defend the advantages that the contract has accorded him. However, such a claim needs manifest evidences; and
since the Deceived ones claim is in conflict with the principle of necessity (of contract), he position himself as the Plaintiff (Ameli, Vol.4,
P.571).
9-2-2 Oath of Ignorance: One may say that if the Deceived is the Plaintiff and cannot prove his claim; he cannot demand oath form the
Deceiver; because the Deceiver cannot swear about the Deceived ones knowledge or ignorance, for he is unaware of it. But this problem should
not let us move the burden of proof of deception to the Deceiver. For if the Deceived cannot prove the deception; he will demand Swearing
under oath from the Deceiver, and the Deceiver answers him with the oath of lack of knowledge. Therefore the possibility of swearing under
oath and demanding swear under oath exists.
9-2-2-1 Based on measures of distinction between plaintiff and respondent, the Deceived is alwaysin the seat of the plaintiff, because if he quits
the claim, the conflict will be over.(Shariat Esfahani, Pp.183 & 184)

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9-2-2-2 Some jurists consider various aspects of ignorance in the Option of Deception one single principle, the Principality of Necessity, or
necessitism (esalatul lozoum) ; if there is any doubt, one cannot undermine the contract.
9-2-2-3 Some other jurists, discussing the subject, point out one matter only; that the Deceived ones ignorance may be proven by the Deceiver,
or with reliable evidences. They have not mentioned other case during the discourse.
(Sabzevari, Vol 17, P. 139)
9-2-2-4 The Proving Principle: If the principle of lack of knowledge, which benefits the Deceived, take precedence over the principle of
necessity (of the contract), it will be considered proving principle and can prove the Option of Deception.
8-2-2-5 If the basis of Option of Deception is the principle of no harm, burden of proof is on the Deceived. Because the one who claims
ignorance of the price, seeks to cancel the contract, since the contract causes loss for him, yet the principle is lack of proof of the Option and
one cannot claim to have suffered loss due to the law (Tabrizi, 2009, Vol.4, P.174).
9-2-2-6 There is no reason for the claim of the Deceived taking precedence over that of the Deceiver. Because la yalam ela men ghebleh one
does not know but his own past. (Araghi, Vol. 5, P. 152)

9-3 Restricting the Option of Deception to the Deceived

The Option of Deception is particular to Necessary contracts. For this purpose, after emergence of the notion of Option to cancel, it is necessary
to determine which one of the two, Deceived or Deceiver, or both of them, have the right to cancel the contract. The answer is that the right to
cancel is the Deceiveds prerogative; and the Deceiver has no say in relation to execution of the Option of Deception. And if the contract, from
the Deceiveds perspective, is void; the only chance for the Deceiver for continuation of the contract is to offer the price difference; and if the
Deceived accepts the compensation, the contract is valid. If the Deceived does not accept the money, and chooses to cancel the contract; the
Deceiver has no choice, but to accept cancellation of the contract. And if the Deceived does not cancel the contract, the Deceiver cannot force
cancellation of the contract. Because the law has given the Option to the Deceived; and in fact realization of the Option, which is the result of the
loss, is applicable to the Deceived only. Thus the issue [of the contract], and the Option is Deceiveds prerogative and the opinion of the other
party has no influence on the outcome; unless an agreement emerges between the Deceived and the Deceiver, the Option stays with the
Deceived, and the Deceiver cannot act against the wish of the Deceived.

10- Features and Regulations of Option of Deception

10-1 The Option of Deception takes effect immediately upon realization of deception (Article 420 Civil Code). The urgency of the Option of
Deception, similar to other Options, is an accepted norm.
10-2 Compensation of the Deceived prior to exercise of the option, does not nullify the Option of Deception. Article 421 states that: If someone
who has deceived the other; offers to pay the price difference, the Option of Deception does not collapse, unless the deceived agrees to accept
the money.
10-3 The necessary condition for the Option of Deception to occur, deception is not the determining factor; instead, it is the imbalance between
the values of the exchanged items that determines whether the Option of Deception has occurred. Therefore, although both parties were ignorant
of the actual prices, again the Option of Deception has occurred
10-4 The Option of Deception may be analyzed based on violation of a tentative agreement of the parties regarding fair exchange of two
commodities or two undertakings. This case, therefore, is not a case of Option of Deception; rather is a case of Option of Violation; but in
distinguishing between these two Options in Civil Code, one realizes the originality of the Option of Deception; it becomes clear and makes it
easier to analyze it based on the no harm principle.
10-5 The effect of loss for the Deceived is emergence of the right of cancelation, it is manifestation of a unilateral Option (igha), and the Option
is cancelled upon the Deceived ones declaration. Therefore he has to be in the state of sound mind and capability of cancelation. The Option of
Deception may collapse with an explicit or implicit declaration.

11-Foundation of the Option of Deception

11-1 Implicit Condition as the Foundation of the Option of Deception
Any contract carries certain conditions and responsibilities which the parties agree to commit themselves to. In Imamieh Jurisprudence, there are
two effective factors for conditions. First explicit mention of the condition(s); second, mentioning it in the text of the contract is called explicit
condition; otherwise it is called implicit condition. These conditions are not mentioned in the body of the contract, but one can discern it from the
surrounding conditions and common parlance. Implicit condition is divided in two types. Implicit condition, based on accepted norms(orfi), and
implicit condition based on principles, or structure(banaei). Some of the articles of Options are, in fact, Parts of these commitments. For
example, common sense tells one to receive something in exchange for what is being given, and the merchandise should be free from defect, and
be exchanged for the current price at the market. Although there is no mention of the Option in the contract, the Deceived has the Option. These
conditions will be examined as the foundations of the Option of Deception.

11-2 Compensation of the Loss as the Foundation of Option of Deception

Earlier Jurists have considered loss as a reason of existence forthe Option of Deception ( Toussi, Vol. 3, P.42; Helli,Vol.1 P.522). They have
stated: The reason for the Option is a consensus over a loss which does not occur usually and with the Hadith narrated from the Blessed

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Prophet, lazarar val azrar, (no harm in Islam) have argued the opposite (Halabi, P.224). Sheikh Toussi, Allameh Helli, Sheikh Ansari, and
many other jurists considered loss prevention one of the bases of the Option of Deception.
On the other hand, some jurists state that loss is function of contracts, and the lzarar Hadith negates functionality of contracts. Therefore,
precondition for appealing to the lazarar Hadith is negation of contracts, not establishment of the Option for Deception; because the resulted loss
shows the necessity and functionality of contracts. Necessity results from necessity of loss and not loss resulting from necessity.The reason for
the lazarar principle is rejection of harmfull laws, not establishment of the Option; where loss is eliminated through establishment of the option
and collapse of the contract. However, the la zarar Hadith does not establish a principle, rather it questions (and undermines) functionality of a
contract which has created loss. Therefore, such a contract collapses. As for wrongfulness of deceitful contract, it exits from the criteria of la
zarar Hadith, because there is no consensus on the issue.
11-3 Rejection of Disdain(ekrah), and Embracing Consensus (ijma) as the Foundation of the Option of Deception
A large number of jurists have considered rejection of disdain and embracing consent as the foundation of the Option of Deception (Halabi,
Vol.1, P. 522; Vahid Behbahani, P.245; Tabatabae Vol.1 P.525; Najafi Khansari, 1978 hg, Vol.3, P.109).Having based their statement on the
holy verse (Quran 4:29), they have explained consent as a basis for the Option. Allameh Hellistates: Of course the deceived, if aware,does not
give consent; for the consent of the deceived to be realized, financial loss should be eliminated (Helli,Vol. 1P.522) .
One can discern from Allamehs argument that the Option has emerged, due to lack of consent. One can say: Equality in value had been
condition and description of the commodity, not its essence. Therefore, lack of equality does not nullify the exchange contract; but it causes the
Option. Therefore, fair commerce is the precondition for legitimate benefit; and consent is also basic element that justifies contracts.
Undoubtedly, necessity and legitimacy of the contract depends on the mutual consent. Because necessity is of the contract is subordinate to
correctness and righteousness of the contract; therefore, one can conclude from the above verse that necessity is subject to consent; and if
inequality emerges, and the consent which had existed due to equality dissipates; and it becomes clear that a party is unhappy with the contract;
because his consent was based on an equality which has disappeared. It would be like one saying to the other: Take this commodity for 1000
Toumans. Then the other agrees to the exchange and buys the item at the said price based on the assumption that its value equals to the said
sum.Therefore one can say that the Deceived lacks the real consent which is the essential necessityto the contract. Some jurists have considered
two types of consent: nominal consent and real consent. They believe that The measure for validity of the contract is a real consent; the measure
for realization of the Option is also real consent( Sabzevari, Vol.17, P.139)

12-Sole Reason for the Option of Deception

Some Jurists have considered violation of the implicit condition as the most complete proof for the Option of Deception (Najafi Khansari, Vol.3,
P.109) ; and some other have considered the violation of the implicit condition the only reason for probative validity of the Option of
Deception(Khoi, Vol.6 P.402).

13-Payment of Price Difference and its Effect on the Option of Deception

It must be stated that: The Option of Deception is based on two criteria: violation of the implicit condition and the principle of no loss. Based
on the doctrine of violation of implicit condition, the Option of Deception is based on the condition that there should be equality of give and
take in the exchange. In case such a condition does not exist, the Option of Deception is realized. According to the other doctrine, the purpose
of the Option of Deception is providing compensation for the loss resulted from the contract. The common assumption in both doctrines is that
there is no financial balance in a deception contract. The question, here, is that: If the Deceiver paysthe price difference; does the Deceived have
the right to reject the payment and cancel the contract? According to Article 214 of the Civil Code, if the Deceiver pays the price difference, the
Option of Deception does not collapse, unless the Deceived accepts the money. There are various assumptions in this Article:
13-1 The Deceiver pays the price difference, and the Deceived consents to taking the money. There is no problem with this case; with consent of
the Deceived to taking the money, the contract stands intact and the Option of Deception collapses.
13-2 The Deceiver offers the price difference and the Deceived does not take the money. This case has led to emergence of two views:
The first view: In case if the Deceived does not agree to the price difference; the Option remains intact, and the Deceived can cancel the
contract; and payment of price difference does not affect his prior rights; and based on the principle of continuance, the Option remains intact.
This is a case which is consistent with the principle of violation of implicit condition as the basis for the Option of Deception. The second view
is that the Option of Deception collapses, because the reason for the Option is loss, and it is removed due to Deceivers payment. Therefore, the
Option collapses and the contract stands intact; because the Deceiver pays the price difference, the Option of Deception collapses; and because
the main purpose of the Option of Deception is removal of loss; and that is resolved through payment of price difference, the Deceived has to
accept it. In response, one can say that negation of the loss is not the only reason for the Option of Deception. And the fact that there is no sole
reason for it, it suffices. Furthermore, giving back the price difference has not been included in causes of collapse of the Option of Deception in
jurisprudence texts. It appears that Article 421 provides the answer and does not consider the payment of the price difference to the Deceived
sufficient for collapsing the Option. But one must consider equity, and accept that the other view is fair and reasonable. (Katouzian, 2009, Vol.5,
P.252)

14- Legal Documentations of the Option of Deception

Article 416: Any of the parties to a contract who has suffered a significant loss can cancel the contract upon its realization. Article 417:
Deception is manifest if it is not due nonchalance in common norms. Article 418: If the deceived, during the contract negotiation, knew
the actual price; he does not have the option to nullify the contract. Article 419: To determine the amount of loss, one must also consider the
condition in which the contract was established Article 420: The Option of Deception takes effect immediately upon realization of the

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loss. Article 421:If the Deceiver pays the price difference, the Option of Deception does not collapse, unless the Deceived consents to
taking the money.
On the one hand, Iranian law makers, by following the Imamieh jurists, have recognized the Option of Deception as one of the ways in
which a contract can be annulled as a result of the lack of the balance between exchange items. On the other hand, in the Article.418, they
have paid attention to the element of the awareness of the Deceived at the time of contract (whether the exchanged items were of equal
value). Therefore the law has incorporated the views of Imamieh Jurists (Najafi, 1986 Vol.26 P.42; Ansari, Vol. 2 P.75) If one of the
purposes of the Option of Deception is providing compensation for the Deceived; the Deceived ones knowledge of the commodity price in
question can weaken the state of the Option of Deception due to the principle of eghdam(taking action); or it can make the principle of
Taking Action supreme over it.

15-Urgency of Option
Article 420 of the Civil Code, following the well known view in Jurisprudence, considers the Option of Deception an urgent matter. The need of
the Deceived for cancelling a contract causes the collapse of the contract. However, with the first glance, it appears that this is not a painstaking
and unreasonable endeavor and there are two facilitating factors:
1- The word urgent in the Civil Code has a conventional, but not technical meaning.Flexibility of convention engenders consideration for all
reasonable excuses and takes human weakness into account in a proper way. It is true that judgment is generic, but the condition of the
Deceived also considered. For example, convention does not demand a party to a contract who is taking his own sick child to the hospital to
leave his child and go to the Registration Bureau or court to declare cancellation. However, it may be seen as a delay from a technical viewpoint.
2-A short period of respite which is commonly known as urgent, and starts upon awareness of Deception. As Article 420 states: The Option of
Deception is urgent after awareness of Deception. So long as the Deceived is unaware of his loss, the respite does not start; unawareness about
the Option and its urgency, is also part of ignorance about Deception (Article 1131). However, there is a difference; since everyone is deemed
aware of the Law, the onus of proof of ignorance is on the Deceived. One must add that after awareness of the Deception; one must immediately
declare, not his decision in his mind, but cancellation of the contract publicly. Therefore if the Deceived delay such a decision, he can lose the
right to cancel the contract.

16-1 Compensating the Deceived Prior to Execution of the Option:

In order for the Deceived to be able to cancel the contract,
17-1-1 The Loss must have happened at the time of contract; meaning huge discrepancy between the values of the two exchanged items that tips
the monetary balance.
18-1-2The Loss must exist up to the time of cancellation. The compensated loss cannot become the basis for the creating the Option and
eliminating necessity of the contract.

16- Collapse of the Option

16-1 The Possibility of Collapse of the Option and its Scope
Collapse of the Option is a voluntary act which is done throughannouncing the decision bythe Deceived, and its scope is the function of the same
decision. Therefore, if the Deceived, assumes that his loss is about the normal loss and cancels the contract; and yet, later it becomes clear that
the price of the item in the contract is multiple value of the real value, the Option does not collapse. Based on this, if there is no evidence about
his intention, common norm is the measure. It means that one must investigate the common view on the matterof discrepancy in that condition.
It is obvious that the Deceived, also, is not far from norm and follows the same policy. In fact, mistake in the foundation of the contract is the
cause of collapse, if it happens, it nullifies the contract. Because if mistake in the object of the contract can nullify it, there is no reason that it
can be effective in one sided obligation(igha). Therefore, since the purpose of a sole active party in the (one sided) contract can be hidden, one
has to refer to convention and use it as the indicator.

16-2 Explicit and Implicit Collapse of Option

Collapse of the Option of Deception may be explicit, it will be mentioned in the contract that the Option of Deception is nullified. Either the
Deceived lets go of his rights or transfers his right to a third party. Also, the collapse may be implicit.
It means the Deceived does something that would lead to signing the contract and collapse of the Option (like upon realization of the loss,
ignores it or pass it on to someone as a gift. In the first group (explicit group), there is no doubt about the will of the Deceived. And if there is a
word or a question, it is about sanity of such a will, its scope, and consistency of his words with his intention. In the second group (implicit
group), there seen to be lots of doubts about the justification of control of the Deceived over the collapse of the Option.
The reason for dispute and investigation is that the Deceived has other purposes for taking possession of the object of dispute; and,the judge
seeks to extract explicit and straight-forward statement regarding collapse of the Option; however, there is no sufficient clarity in the
convention.For example if the Deceived has a commodity and sells it to someone else, his purpose is to exchange it for money. However, the
judge must investigate the necessary reasons for the collapse of the Option. Another word, he must reach a conclusion that selling of the
commodity necessitates collapse of the option. In this analysis, an important part of the problem is lack of clarity in convention and its flexibility
in diverse conditions, in such a way that the view of the convention regarding property transfer prior and after realization of Deception is not

Forouzan Alaeinovin *, Gholamhossein Kiani

138

World Applied Programming Vol(4), No (4), April, 2014.

consistent. Also, convention does not approach issues such as permission, commercial transaction, and gift in a consistent manner; and
looks at each subject in its context. Therefore, there is no clear and absolute answer to the abstract question whether possession of the Deceived
causes collapse or not.The situation in the Option of sight and the Option of refraining from description have similar problems (Katouzian,
2001 vol 5, P.207).

17-The process of exercising the Option

According to Civil Code and Sources of Jurisprudence, the process of exercising the right to cancel by the Deceived can be enumerated as
the following:
17-1Putting the cancellation in writing
17-2 Declaring the cancellation of the contract
17-3 Observing urgency
17-4 Reasonable excuse and urgency of the Option of Deception
17-5 Payment of Price difference and its effect on the Option of Deception

2. Conclusion
Upon thorough research, it became clear that:
1-The philosophy of legitimization of Deception, it is to compensate an unjust loss experienced by one of the parties of the contract. In a
contract, the parties always have their own interests in mind, and seek higher interest and less loss. Acquiring legitimate financial gains has been
affirmed by law; however, if there are huge differences in the values of exchanged items; and the contract has occurred as a result of deception
by one of the parties; and the discrepancy is excessive beyond conventional acceptability; there is no other choice, but to create a balance
through legal means, or to compensate for the loss.
2- In Quran (4:29), God has revealed: You who believe, do not consume your wealth idly (squandering it) on one another, unless it is for some
commerce based on mutual consent among you. It has been thought further that We have forbidden you consuming whatever has been
acquired by unjust meansThus, it has been commanded that believers should not consume the property of others unjustly, and distribution of
wealth through consent has been recommended. One can take the above verses as general principles and over-arching points of reference in
Islamic legal system.Particularly, the causes of Liability(asbab-e zeman)have this general goal. One of the cases that the above verse has been
referred to is in proving the Option of Deception. Some have referred to the first part, some, to second part, and some have referred to the entire
verse. Sheikh Ansari narrating Allameh in Tazkareh, where he has referred to the second part of the verse; states that it would have been better if
Allameh had referred to the first part (do not consume your wealth idly); because when one sells an item which is worth one Derham, for ten, in
case if the Deceived, after realization of the loss, cannot cancel the deal, it would be a case ofconsuming forbidden things. Some
commentators, speaking formerchants, have criticized Sheikh for it. They seem to argue that corrupt means corrupts the deal, but it should not
give the right of cancellation to the Deceived. Therefore, they try to prove the Option of cancellation, the above verse cannot be used.
3- On the issue of Deception, due to imbalance of commodity values and lack of consent, the Deceived one has the right to cancel the contract,
using the Option of Deception. As stated in the Article 416, Civil Code: Any contracting party who has been deceived, upon awareness of
deception, can cancel the contract. Therefore, the same way that harming others is forbidden, respect for the property of Muslims has been
commanded, We have forbidden you consuming whatever has been acquired by unjust means is also a principle that informs Islamic
Jurisprudence.
4- About Deception, it must be noted that; to determine Deception and price discrepancy, price is not the only consideration. Rather there are
other factors involved as well. One of the issues which helps one to determineDeception and price discrepancy is the measure for determining
the price of the commodity which is being exchanged. It is the price at the time of signing the contract that matters, and not at the time of
cancellation. If the price of exchangeable item was one million Rials at the time of the contract, and it was bought at two million Rials, and now
the same item is worth ten million Rials; the buyer can cancel the contract, using the Option of Deception. However, the opposite is true as well.
5-Other cases in determining Deception and price discrepancy, one must consider the price during the contract;because the conditions during the
contract and agreements surrounding it are important. In reality, in addition to condition being a commitment which its parts and contents are
written in the contract; in essence is part of the contract and it has emerged from it. In reality, those conditions are inseparable from the price
determination. Therefore, these conditions must be taken into account at determining the price discrepancy and loss.
6- In order to determine the Deception and price discrepancy, one must take to account the specific action which has been conditioned for the
other party which has influenced the price determination. Because the action (labor), in reality, had been part of the price, and is important in the
contract and ultimately in determining the Option.
7- If the Deceiver is prepared to compensate the Deceived for the loss, the Deceived may accept the compensation or use the Option of
Deception to cancel the contract. Another word, if the Deceiver is willing to pay the loss (or price difference), the Deceived is not obliged to
accept Deceivers offer, and the Option does not collapse; on the contrary, the external will to execute the Option has been declared.
8- In judging between implicit condition and the principle of no harm, to choose between the two; to choose one of them as the basis for
Option ofDeception, the principle of no harm is preferred, and is more consistent with Civil Code principles. Analysis of the implicit condition

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A Research on Religious Jurisprudence Regarding Option of Deception

World Applied Programming Vol(4), No (4), April, 2014.

gets to a point that Option of Deception is an example of the Option of Violation of Condition, confirms their independence and grants
originality to the Option of Deception. The possibility of influence of the principle of no harm in the conscience of the jurist is much more
than the new, but imperfect, doctrine of implicit condition.

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