نوع مقاله : مقاله علمی پژوهشی
نویسنده
استادیار و عضو هیئت علمی گروه فقه و حقوق دانشگاه بزرگمهر قائنات، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Transactions related to real estate property are considered non-commercial in the commercial law approved in 1311; however, in Article 5 of the Law of purchase of Apartment approved in 1343, the legislator provides the possibility for companies subject to Article 20 of the commercial Law to build houses, apartments or place of business for sale or rent. There is a difference of opinion among jurists regarding the consideration of the matters mentioned in that article as commercial nature. Also, the group that considers the above activities to be commercial; In this regard, they do not agree whether those matters are included in Article 2, Clause 1 of the commercial Law or not. In French law, the purchase of real estate with the intention of sale is considered inherently commercial; unless the buyer proves that he meant to buy, build a building and sell it. Also, some companies are commercial by their form. Therefore, the purchase of real estate for the purpose of construction and sale, if it is done by them, is considered commercial.
The current research is based on the fact that the items listed in Article 5 of the Law of purchase are commercial in nature and are added to the items listed in Article 2 of the commercial Law, and if they are carried out by natural persons, commercial activity has also taken place. Also, according to the analogy of priority, the purchase of real estate property with the intention of selling or renting is commercial nature. Contrary to the opinion of the commentators, the purchase of immovable property with the intention of selling and renting is also considered a commercial act, and this is achieved by the analogy of priority, and in the words of the legislator, it is hidden and not achieved by the analogy of the inferred. The stronger criterion of the ruling can be used in addition to the words of some commentators: in our law, the purchase of land or an existing building is for the purpose of building a new commercial building; but buying a building is not for commercial sale. Something that can be criticized; because the nature of recent transactions is closer to the nature of transactions regarding movable property that are considered commercial. Another thing that confirms the possibility of the analogy of priority is that in French law, the purchase of immovable property with the intention of sale is considered inherently commercial; unless the buyer proves that he meant to buy, construct a building and sell it (paragraph 2 of article 1-110. L). Now that the legislator, contrary to French law, has considered the purchase of land for the purpose of construction and sale as commercial according to Article 5 of the Law of Acquisition, it considers the purchase and sale of land as commercial in the first way.
کلیدواژهها [English]
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