Comparative Civil Procedure
Procedure & Regularity for Accuracy, True Dispute Resolution and Happiness

The Scope of the Waiver of the Option of Lesional Loss (Khiyār al-Ghabn): A Critical Analysis of Judgment No. 9409970906900587 (March 01, 2016) Issued by the 3rd Branch of the Supreme Court

Document Type : Original Article

Author

Mohammad Hadi Javaherkalam

Assistant Professor of Private Law, Faculty of Law and Political Science, Allameh Tabatabai University, Tehran, Iran

Abstract
Evaluating the scope of the clause waiving the option of lesional loss (khiyār al-ghabn) and its applicability to extreme degrees of disparity constitutes one of the fundamental challenges in contract law. This article critically examines Judgment No. 9409970906900587 rendered by the 3rd Branch of the Supreme Court, in which a waiver of the option of lesional loss "to any extent" was construed as depriving the aggrieved party of the right of rescission, even in the presence of a gross price disparity (double the actual market value). Through a jurisprudential and legal analysis of the issue—focusing on the parties’ constructive intent and customary limitation (inṣirāf), which has also been affirmed by Unified Judicial Precedent No. 821 of the General Bench of the Supreme Court—this study concludes that a waiver clause covers only customary and intended degrees of loss, without extending to extreme disparities or multi-fold price differences. Nevertheless, the judgment itself remains justifiable solely on the basis of the aggrieved party's explicit admission of full awareness regarding market practice.

Keywords

Option of Lesional Loss (Khiyār al-Ghabn) Gross Disparity (Ghabn Fāḥish) Extreme Disparity (Ghabn Afḥash) Waiver of Option
Judicial Practice
Unified Judicial Precedent No. 821
Subjects
Comparative Civil Procedure
Volume 2, Special Number
Commemorative Volume Honoring His Excellency The Judge Hassan Ghaffarpour Maraghi President of 3rd Branch of the Supreme Court, Iran
2026

  • Receive Date 28 September 2026
  • Accept Date 29 September 2026
  • Publish Date 23 October 2026

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