Validity of Participation Contracts in Medical Research Based on the General Rules of Contracts
Subject Areas : Medical lawMohsen Pour Ali 1 , Mohsen Pourmohammad 2
1 - Master’s student in Private Law, Department of Law, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran.
2 - Assistant Professor, Department of Islamic Studies, Faculty of Paramedical Sciences, Hazrat Zeynab School of Nursing and Midwifery, Langarud, Guilan University of Medical Sciences, Rasht, Iran.
Keywords: Contract, medical research, informed consent, volunteer, freedom of contract, Article 10 of the Civil Code. ,
Abstract :
The variability of social life has led to the emergence of new types of contracts whose governing rules cannot easily be found in existing laws. The contract of participation in medical research is one of these emerging agreements. It refers to a situation in which a researcher, within a specific framework, conducts experiments on human subjects in order to achieve legitimate medical objectives. In principle, the consideration and counter‑consideration in this legal act differ from those in other legal transactions and have their own specific definitions. This raises the question of whether such an agreement is valid or not. Another important point is that many studies must necessarily be conducted on individuals who lack legal capacity, such as minors and the mentally incapacitated, or on patients who do not possess sufficient consciousness. Examining the manner of obtaining consent from such individuals is also among the issues for which it is not easy to find a satisfactory answer in existing laws. A study of library sources and attention to the new needs of society lead to the conclusion that the validity of this agreement should be recognized and that, under special conditions, permission should also be granted to conduct research on individuals who legally lack the power to express consent. Another point is that consent in this agreement has a particular nature, and because it affects the element of intention, the absence of consent results in the invalidity of the contract.
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