The Concept of Demanding the Subject of Pre-emption and Its Effects in Jurisprudence and Iranian Law: An Examination and Analysis of Article 818 of the Civil Code

The use of the term "demand" in Article 818 of the Civil Code has surprised legal scholars. According to the latter part of this article, the purchaser is not liable for loss, damage, or defect occurring after the exercise of the right of pre-emption and the making of a demand, unless he has committed transgression (taʿaddī) or negligence (tafrīṭ). In contrast, pursuant to Article 631 of the Civil Code, if a bailee refuses to deliver the trust property after it is demanded, they will be liable for its loss and any defect, even in the absence of transgression or negligence. Consequently, all civil law commentators consider the ruling of Article 818 to be contrary to the general rules governing demand. Nevertheless, it should be noted that in drafting Article 818, the legislator has followed the special structure of the institution of pre-emption (shufʿa) and the principles governing it. Accordingly, the rules related to the demand for the subject of pre-emption have been separated from the general rules applicable to trusts and deposits. Based on this, after the occurrence of "taking by pre-emption," whether the subject of pre-emption has been demanded or not, the purchaser is liable only in case of waste or negligence. Furthermore, the purchaser's liability for the loss, damage, or defect of the pre-emption subject after taking it is not subject to the rules governing transactions, including the warranty of exchange. Additionally, prior to taking by pre-emption, the purchaser is the owner and, as such, is not liable for the loss or damage to the property. On this basis, after the occurrence of the exercise of pre-emption, whether or not the subject of pre-emption has been demanded, the buyer is liable only in cases of transgression or negligence. Moreover, the buyer’s liability for the loss, damage, or defect of the pre-empted property after the exercise of pre-emption is not governed by the rules of transactional liability, including reciprocal liability (ḍamān-e moʿāwaḍī). Additionally, prior to taking by pre-emption, the purchaser is the owner and, as such, is not liable for the loss or damage to the property.