Feasibility of reference in couples' gifts based on jurisprudence (Criticism on Article 803 of the Civil Code with proposed amendment)

Document Type : Original Article

Author

university of qom

Abstract

In Article 803 of the Civil Law, the principal in the gift contract is based on permission and states the necessary cases under exceptions. With the interpretation based on the concept of limitation, the gift of the spouses is subject to the permission of reference. At the moment, the issue of gifts for couples is controversial among jurists. A group based on Muhammad bin Muslim's Sahih and Ijmaa are of the view that it is permissible, and another group is of the opinion that it is necessary to donate, based on the fact that couples are in love with each other, the verse of Ufwa al-Aqud and Sahih al-Zararah of Imam Sadiq (a.s.). Due to the fact that the origin of the disagreement is in the perception of the evidence, the writer in this research evaluated the arguments of both opinions by referring to library sources and descriptive-analytical approach. Regarding the arguments of those who believe in permissibility, the conclusion was reached that the subject of the Sahih of Muhammad bin Muslim is the reference to charity, not the gift, and since the condition for the realization of charity is the intention of closeness, therefore the reason for the permissibility of reference is the non-fulfillment of charity. The movable consensus also faces small and large obstacles. But regarding the argument of the proponents of necessity, .

Keywords

Main Subjects

Civil Jurisprudence Doctrines

Articles in Press, Accepted Manuscript
Available Online from 18 October 2023

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