Document Type : scientific

Authors

• Mahsa Nazari ¹
• Saeid Kheradmandy ²

¹ PhD student in Private Law, Department of Law,Kermanshah Branch, Islamic Azad University, Kermanshah,Iran.

² Assistant prof. at Department of Law,Kermanshah Branch, Islamic Azad University, Kermanshah,Iran.

Abstract

In international conventions such as the CMR (Convention on the Contract for the International Carriage of Goods by Road) and domestic laws like the Civil Code and the Commercial Code, different foundations have been established for the liability of the carrier. This divergence has led to various disputes, which the legislator has resolved in the 2019 Draft Commercial Code by clearly specifying the basis of the carrier’s liability. The aim of this article is to determine the legal basis for the carrier’s liability with regard to the CMR Convention, the Civil Code, the Commercial Code, and the 1398 Draft Commercial Code, in order to clarify who bears the burden of proof in case of damage. This article has been written using a descriptive-analytical method and based on library research. The findings indicate that the basis of the carrier’s liability in the 2019 Draft Commercial Code originates from the general rules of contract law, and the carrier’s obligation is considered an obligation of result, meaning that mere breach of the obligation is regarded as fault. Moreover, under Article 112, the legislator explicitly adds "safety obligation" as a subsidiary obligation. Unlike the Civil Code and Commercial Code, the 2019 Draft Commercial Law (if enacted) recognizes transport contracts as independent agreements, stipulating their specific provisions and effects. Through Article 110, it implicitly overrides the Civil Code, excluding transport contracts structured as lease agreements from its scope and subjecting them to its own regulations. Additionally, Article 111 states that international treaty provisions apply in cases of legislative silence, thereby explicitly bypassing the Civil Code and aligning with international conventions.

Keywords

• Liability
• Basis of Liability
• Fault
• Obligation of security
• Carrier
• Transportation

Main Subjects

• Private Law