The Impact of Gender Change on Continuity or Dissolution of Individual Contracts

Articles in Press

Document Type : Scholarly Article

Authors

1 Associate Prof, Department of Private Law, University of Tehran, Tehran, Iran.

2 Ph.D. Student of Private Law in Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran.

10.30497/flj.2024.245126.1945

Abstract

The continuity of individual contracts such as employment contract, hiring, acting and marriage has been questioned after gender change which was studied according to jurisprudence and legal sources and doctrine. In general, whenever a feature or issue had considered as an effective cause for purpose of contract or as an implied term for intention, continuity or dissolution of the contract may be depends on it. Principally, if effective intention of one of the parties become defective by the change of gender as a vitiation issue, that legal act will have been dissolved, and if the effective cause of the contract become defective, the other party will be entitled to terminate the contract or that contract will have been dissolved automatically. In addition to paying attention to accuracy principle, by inferring from articles 1071, 1105 and 1106 of the Civil Code, the gender difference of the parties is one of the fundamental clauses for validity of marriage, Moreover, due to the defect of the intention, effective cause (general issue) and illegitimacy of the contractual purpose, the marriage will have been dissolved. This issue in the employment contract is slightly different, that is, in cases where gender change creates a religious obstacle to employment or be against the public interests, the contract will have been dissolved based on Article 6 of the Labor Law, but according to the prohibition of discrimination and necessity to protect of worker rights, when effective cause (general issue) of the employment contract will been defected, the employer will only have the right to terminate. However this right just will possible when the special gender had been actual requirement, not just accordance to job advertisement.

Keywords

Main Subjects

References

- Araghi, S. E. (2014). Labour Law (Vol.1). Tehran, Iran: Samt.
- Bakhshandeh, M. & Zareii Fard, S (2019). I am not X. Tehran, Iran: Andisheh Ehsan.
- Brojerdi, M. (2001). Almostanad Fi Sharhe Orvatelvosgha: Seyed Abolghasem Khoii (Vol.30).    Qom, Iran: Institute for Revival of Imam Al-Khoei's Works.
- Emami, A. (2013). A Comparative Study about Parentage and Gender Change in Iran and France Law. Tehran, Iran: Mizan.
- Emami, H. (2022). Civil Law (Vol.2). Tehran, Iran: Islamieh.
- Emami, H (2022). Civil Law (Vol.4). Tehran, Iran: Islamieh.
- Emami, H (2022). Civil Law (Vol.5). Tehran, Iran: Islamieh.
- Jahanfar, S. & Molaei Nejad, M. (2019). Textbook of Sexual disorders. Tehran, Iran: Jameh Negar.
- Khoshsourat Movaffagh, A., & Afghah, E.S. (2023). Jurisprudential and legal investigation of the effects of gender change on the wife's financial rights. Islamic studies of women and family, 9(16), 211-229.
- Karimi, A., & Shabani Kandesari, H. (2014). The Logical Relationship between No Less Principle in Islamic Jurisprudence and Principle of Abuse of Right in West Legal System. Comparative Studies on Islamic and Western Law Journal, 1(2), 136-166.
- Karimi Nia, M.M. (2009). Gender change from the point of view of jurisprudence and law. Qom, Iran: Jurisprudential Center of infallible Imams.
- Katouzian, N. (2022). General Principles of Contract (Vol.1). Tehran, Iran: Gang-e-Danesh.
- Katouzian, N. (2022). General Principles of Contract (Vol.2). Tehran, Iran: Gang-e-Danesh.
- Katouzian, N. (2022). General Principles of Contract (Vol.5). Tehran, Iran: Gang-e-Danesh.
- Katouzian, N. (2022). Iranian Civil Law: Family Law. Tehran, Iran: Mizan.
- Kusum (1983). Legal Implication of Sex Change Surgery, Journal of the Indian Law Institute, 25(1), 73-89.
- Mohaghegh Damad, S. M. (2009). The General Theory of Terms and Obligations in the Islamic Law. Tehranm, Iran: Islamic Science Publication.
- Ratnam S. S., & Lim, S. M. (Edited by John Studd) (1982). Surgical treatment of transsexualism. in Progress in Obstetrics and Gynaecology, 2, 22-39.
- Safaei, S.H & Emami, A. (2014). A Concise of Family Law. Tehran, Iran: Mizan.
- Thaler, C. (2010). What Does It Mean to Be Real? Transgender Identity and the Law (GPSolo), Sex and the Law, 27(1), 26-29.
- Tomchin, O. (2013). Bodies and Bureaucracy: Legal Sex Classification and Marriage-Based Immigration for Trans People, California Law Review, 101(3), 813-860.
- Veisy, A. & Nazari, A. (2016). Legal Position of Change Gender in Law System of Iran, Tehran, Iran: Jangle Publication.
- Wojcik, M. E. (2016). Sexual Orientation and Gender Identity under International Law, Proceedings of the Annual Meeting, American Society of International Law, 110, 21-25.
 
Biannual Journal of Family Law And Jurisprudence

Articles in Press, Accepted Manuscript
Available Online from 03 March 2025

Files

Share

How to cite

Statistics