Document Type : Research Article

Authors

• Mohammad Jaber Ghanbari ¹
• Mahdi Kazemi ²

¹ Assistant Professor, Department of Private Law, Faculty of Law and Social Sciences, Payam-e Noor University, Tehran, Iran.

² PhD Student in Private Law, Razavi University of Islamic Sciences, Mashhad, Iran & Level 3 Student of Jurisprudence and Law, Navvab Higher Seminary, Mashhad, Iran.

Abstract

Undoubtedly, as stipulated in Article 719 of the Civil Code, the release (Ibrā') of the guarantor (Ḍāmin) results in the forfeiture of his right of recourse against the principal debtor. However, the ruling for the scenario where the creditor gifts the debt to an authorized guarantor is not provided for in the law. The purpose of this article is to state the jurisprudential and legal reasons for the lack of a right of recourse for the guarantor against the principal debtor before the payment of the debt and after the gift of the debt to the guarantor. The findings of the research, which is based on a descriptive-analytical method, show that according to the narrations (Riwāyāt) in jurisprudence and the famous opinion of the jurists, given the gratuitous/charitable nature of the guarantee contract, the origin of the guarantor's right of recourse against the principal is the damage caused by the guarantor's payment of the debt. Furthermore, before the debt is paid, the occurrence of harm to the guarantor is not certain, and therefore it is not subject to the rule of no-harm (Qā'idat Lā Ḍarar) as the basis for the guarantor's right of recourse. From a legal perspective, the arguments of those in favor of the right of recourse in this specific scenario are flawed. On one hand, the criterion of the ruling in Article 712 cannot be relied upon, because the guarantor's recourse after inheriting the debt was not without consideration, but after a gift of the debt, it is without consideration and without the guarantor incurring any loss. On the other hand, due to the lack of joint and several liability and the extinguishment of the creditor's (principal's) right of recourse against the principal debtor, the subrogation of the guarantor after the gift of the debt would also be meaningless. Therefore, the criterion of the second part of Article 321 on usurpation is also not applicable to this case. Moreover, granting the guarantor a right of recourse in this situation would mean an increase in his assets—a matter that is contrary to the purpose of legislating the contract of guarantee in jurisprudence and civil law. This is because Article 709 stipulates that the condition for recourse is the loss resulting from the payment of the debt.

Keywords

• Release (Ibrā')
• Right of Recourse
• Guarantor (Ḍāmin)
• Principal Debtor
• Gift of the Debt (Hibeh-ye Ṭalab)

Main Subjects

• Private Law