Legal Analysis of Contractual and Tort Liabilities of the Developer and the Owner in Off-plan Building Sales
Subject Areas : Civil liabilityNarjes Khan Vali 1 , Vahid Zarai Sharif 2
1 - Master's degree student in private law, Law Department, Ahrar Higher Education Institute, Rasht, Iran.
2 - Assistant Professor of Islamic Jurisprudence and Principles of Islamic Law, Department of Jurisprudence and Law, Faculty of Humanities, Lahijan Branch, Islamic Azad University, Lahijan, Iran.
Keywords: Off-plan building sale, contractual liability, tort liability, construction partnership agreement, joint and several liability ,
Abstract :
Off-plan building sale, as a key instrument in the Iranian housing market, is accompanied by numerous legal challenges. This article, using a descriptive-analytical approach, provides a legal analysis of the contractual and tort liabilities of the developer (builder) and the owner toward buyers of pre-sold units within the framework of construction partnership agreements. Relying on the sources of the Civil Code, the Off-Plan Building Sales Act ratified in 2010 (1389), and the Civil Liability Act, this study indicates that the developer's liability primarily concerns the technical and construction execution obligations (building quality, adherence to safety standards, and timely delivery), while the owner's liability is more related to the legal and registration aspects (securing land ownership, preventing disputes, and formal transfer of ownership). However, in cases of damages resulting from a combination of factors, judicial practice tends to accept joint and several liability between the owner and the developer to provide more effective protection for buyers (as the weaker party to the transaction). The fundamental distinction between contractual liability (which can be limited based on the principle of freedom of contract) and tort liability (which cannot be waived and is based on the principle of full compensation) highlights the complementary and protective role of tort liability, especially in cases of latent defects or personal injuries. The findings reveal existing ambiguities in the scope of liabilities, the effects of terminating the partnership contract on prior pre-sales, and the protective gaps in the Off-Plan Building Sales Act, justifying the necessity for legislative review. Finally, practical solutions for reducing litigation and proposed amendments to the Off-Plan Sales Act are presented to increase transactional security and strengthen the protection of buyers' rights.
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