Civil Jurisprudence Doctrines

scientific

The Constructive Destruction of a Sold Usurped Property to a Bona Fide Purchaser in the Balance of Jurisprudential Critique (The Criticism of the Proposed Bill of the Amendment of Article 323 of Civil Code)

Atefeh Ajori Ayask; sedighe mohamadhasani

Volume 15, Issue 28 , December 2023, Pages 3-26

https://doi.org/10.30513/cjd.2022.3477.1595

Abstract

The usurper in Shīʿite jurisprudence is obliged to return the specified usurped property, except in the case of destruction (both factual and constructive) of the usurped object. ... Read More The usurper in Shīʿite jurisprudence is obliged to return the specified usurped property, except in the case of destruction (both factual and constructive) of the usurped object. Article 323 of Civil Code based on this, considers purchaser of the usurped property as a usurper which the owner can refer to him for the return of the specified object. A proposed bill, however, based on the amendment of the above article has been submitted to the parliament in order to protect the validity of the official document and protect the rights of a bona fide purchaser, according to which the usurped property that has been transferred through drawing up and making an official document and the customer is ignorant of its usurpation is considered as a destructed object and the owner is only entitled to its price, which can only refer to the “usurper purchaser” to receive it. The aforementioned proposed bill is controversial in terms of jurisprudential foundations, which is examined in the present article by a descriptive-analytical method and using original jurisprudential sources, because the criterion for the realization of constructive destruction is the occurrence of an intellectual or religious impediments in the return of the existing object. “Capable of being owned exceeding,” “impossibility,” “bodily injury,” “Destruction of a property with a known owner,” and “Destruction of a usurper’s property especially in the assumption of destruction and demolition of his/her considerable property” are among intellectual or religious impediments to the restitution of a specified object and cause the realization of the title of constructive destruction, but the mere “transferring acts” due to the forcible illegitimate possession of the usurper does not lead to the realization of the religious impediment and consequently, the title of a constructive destruction about a usurped specified object. In addition, in the case of the constructive destruction of a usurped specified object, the customer, whether ignorant or knowledgeable along with the usurper purchaser is the liable and responsible for something identical (fungible) or the price of the usurped property and merely ignorance will not be removed his/her liability.

scientific

The Effect of Repudiation (Termination) of the Contract of Construction Partnering on Futures Trading Contracts from Jurisprudential-Legal Perspective and the Code of Pre-Sale of Condominium

ghasem eslaminia; KIYAN FULADI; hamidreza parhamehr

Volume 15, Issue 28 , December 2023, Pages 27-52

https://doi.org/10.30513/cjd.2022.3717.1624

Abstract

Construction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one ... Read More Construction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one of the challenging and controversial issues is the repudiation (termination or cancellation) of construction partnering before the construction of pre-sale condominium and its impact on the pre-buyers of the condominium share. The view that considers the nature of the pre-sale contract in the contract of construction partnering as its common and traditional sense, with the effect of the issue of possessory of the contract of sale (Arabic: بَیْع, Bayʿ) and principles such as the principle of correctness (validity) and the principle of non- authorization of the impact of termination (repudiation) and at the same time, regardless of the nature and concomitants of the contract of construction partnering, believes that the subsequent termination does not affect the previous pre-sales. In contrast, according to the second point of view that considers the pre-sale of the builder’s share as a contractual and continuous covenant in the construction of condominium contract has different and specific elements than the common and term concept of sale (Arabic: بَیْع, Bayʿ) even with the knowing of ownership of all types of contracts of sale and considering the principle of mutual consent (agreement) and the structure of the construction partnering contract and complete dependence of the pre-sale contract on that contract with the termination of the partnering contract before its enforcement had been cancelled the possibility of delivery of the object of sale in the context of partnering contract as the mother and the basis of pre-sale contracts and pre-sale contracts are subjected into forcible automatic cancellation. This article has proved the second theory by explaining and analyzing the nature of the contract of construction partnering and its relationship with pre-sale contracts in the form of maternal-fetal attachment (MFA) and conditional contract and considering the principle of voluntarism (dominion of will or supremacy of will), and considers as a remover of some legal challenges of pre-sale apartment contracts resulting from construction partnering contract in Iran’s judicial precedent.

scientific

Approaches to Interpretation of Contract: Contextualism and Textualism by an Emphasis on the Intent of the Parties

Mohsen Akbari; AmirAbbas Bozorgmehr; Mahmood Habibi

Volume 15, Issue 28 , December 2023, Pages 53-94

https://doi.org/10.30513/cjd.2022.3804.1639

Abstract

One of the most important issues in contract law is the interpretation of contracts. The parties to the contract may have disagreements in the meaning of the terms and phrases of the ... Read More One of the most important issues in contract law is the interpretation of contracts. The parties to the contract may have disagreements in the meaning of the terms and phrases of the contract. The disagreement in the contact faces an obstacle in the fulfilment of contractual obligations and the courts must interpret the contract in order to the settlement of disputes and fulfilment of contractual obligations. The most important purpose of interpretation is exploring the common intent of the parties. Textualists and contextualists both claim to discover the intent of the parties. Textualists take consider intention as the real and true intention of the parties and search for it in the context of the contract. In contrast, contextualists consider subjective intention to be the real and genuine will of the parties to the contract and consider the text of the contract as an incomplete resource regardless of the context in which the contract is formed. Exploring the real intention under the principle of freedom and principle of voluntarism is assumed as one of the most important values of legal systems in the field of contract law in this article. Therefore, the main criterion for evaluating each of these approaches is the ability to achieve the actual intention. The contextualism approach has more ability and accuracy in exploring the real intention of the parties by using extensive evidence. Although the textualism approach is consistent with the real intention of the parties in some cases, it is not very successful in exploring the real intent of the parties due to the limitation of the cited sources. It can be said in this research by relying on descriptive-analytical method and by evaluating the rules of each of these approaches that systems that consider contract as merely a tool to realize economic values in transactions are more inclined to textualism approach; in contrast, in systems in which the contract itself has intrinsic value and the realization of the parties’ intentions has relevance regardless of economic values are more likely to adopt a contextualism approach. Accordingly, in the author’s opinion, ending the unfinished textualism and contextualism struggle depends on examining the value priorities of a legal system in the field of contract law which has been neglected in the research of the last two decades.

scientific

A Reflection on the Existence of the Condition in the Exclusiveness of Property to Two People in Proof of the Right to Pre-Emption from the Perspective of Shīʿite Jurisprudence and Sunnite Schools

Abdullah Bahmanpouri; Abolfazl Alishahi Qalehjuqi; Sayyed Sadrullah Samadi; Fatemeh Qodrati

Volume 15, Issue 28 , December 2023, Pages 95-124

https://doi.org/10.30513/cjd.2023.3156.1553

Abstract

The exclusiveness of property to two partners (monopoly of property) is one of the conditions stated by jurists in the implementation of the right of pre-emption (Arabic: حَقّ ‌الشُّفْعة) ... Read More

scientific

The Jurisprudential-Legal Examination of the Theory of Time Value of Money and Its Extent of Its Function

mohammad taqi tolami; , mohammad nozari ferdosiyeh; khalilzadeh, mohammad reza

Volume 15, Issue 28 , December 2023, Pages 125-150

https://doi.org/10.30513/cjd.2022.3657.1617

Abstract

The time value of money is one of the most important issues in economics which is less studied from a jurisprudential and legal point of view. The present money has more value than ... Read More

scientific

Analyzing the Condition of Failure of Offspring (not getting pregnant) in Marriage in order to Oppose Public Order and Good Deed (A Comparative Study in British and American Law)

ali jafari; Fateme Shabani

Volume 15, Issue 28 , December 2023, Pages 151-180

https://doi.org/10.30513/cjd.2021.2248.1410

Abstract

The freedom and dominion of will [supremacy of will], in addition to the law, are also restricted by public order and good deed (Arabic: الخُلُق الحَسَن, good behavior) ... Read More The freedom and dominion of will [supremacy of will], in addition to the law, are also restricted by public order and good deed (Arabic: الخُلُق الحَسَن, good behavior) in our Law [the Iranian Legal System]. Contracts contrary to public order are null and void. In this case, the condition is the same as a contract, and the rule of non-enforceability of contracts against public order and morals can also be extended to terms against public order and morals. Condition in this case is the same as the contract, and the ruling of inability to enforce contracts contrary to public order and good deed can also be extended and generalized to the conditions contrary to public order and good order. One of the conditions that couples under the influence of the current socioeconomic status are willing to include it in the contract of marriage in order to turn the other party’s adherence to this condition into a requirement having sanctity is the condition of not getting pregnant (failure of offspring), which is one of the serious challenges about it, is the issue of contradiction or non-contradiction with public order and good deed. We tried to answer this question by descriptive-analytical method in this study: What is the status of the condition of not getting pregnant in marriage in terms of validity or invalidity (annulment) due to opposition to public order and good deed? Finally, we found that considering the relativity of the concepts of public order and good morals, the condition of not getting pregnant in terms of validity or invalidity also becomes a variable and relative matter, and its contradiction or non-contradiction with public order and good deed completely depends on the status of each time period and the situation of each region. However, it can be said that this condition under normal circumstances is not against public order and good morals. In the legal texts of the United Kingdom and the United States, childbearing is not considered as one of the positive rights of couples towards each other, and its failure is not against the public order of these two countries.

scientific

Status and Legal Consequences of Microchip Implantation with Emphasis on Civil Liability

Narges Dehghan; Reza Hosein Gandomkar; mohammad mahdi azizollahi

Volume 15, Issue 28 , December 2023, Pages 181-204

https://doi.org/10.30513/cjd.2022.3647.1614

Abstract

Devices in the course of the evolution of science and technology continue to grow and develop for greater efficiency as well as being placed on smaller scales. The increasement use ... Read More

scientific

Discharge of Contract by Impossibility of the Fulfilment of Contractual Obligations Resulting from the Contract in a Non-Attributable Manner to the Obligor

Muhammad Abdolsaleh Shahnoosh Forushani

Volume 15, Issue 28 , December 2023, Pages 205-230

https://doi.org/10.30513/cjd.2022.3688.1622

Abstract

The fulfilment of a contract may be made impossible by events involving the subject. The fulfilment of the contract may also not provide the primary purpose of its formation. This is ... Read More

scientific

The Parties of a Bill of Exchange and the Necessity of Drawee (Assignee)’s Consent; Preparation of the General Theory of Cession of Debt and Novation of Debt in Shīʿa Jurisprudence by a Comparative Study in Iranian and French Law

Seyyed Hossein Safaii; Mohammad Hadi Javaherkalam

Volume 15, Issue 28 , December 2023, Pages 231-265

https://doi.org/10.30513/cjd.2022.3750.1631

Abstract

Acomparative study in Iranian and French law has been investigated and reviewed in this article around the contract of assignment and the necessity of drawee (Arabic: مُحال ‌عَلَیه, ... Read More Acomparative study in Iranian and French law has been investigated and reviewed in this article around the contract of assignment and the necessity of drawee (Arabic: مُحال ‌عَلَیه, assignee)’s consent in order to use the results of the discussion to prepare the general theory of cession of debt and seeking in Shīʿa jurisprudence. The question is, who are the parties to the contract of a bill of exchange and whether it is necessary to obtain the consent of the drawee for the conclusion or effect of the contract of the bill of exchange? Moreover, is it possible to deduce the institution of transfer of religion and cession of debt and novation of debt in a direct manner from this discussion in Shīʿa jurisprudence and civil law and is it possible to analyze the second and third paragraphs of Article 292 Civil Code based on it? We came to the conclusion by a descriptive-analytical research method and by studying jurisprudence texts and legal doctrine that the stronger opinion in Shīʿa jurisprudence and Iranian law is that the consent of drawee (assignee) is necessary for the occurrence of the bill of exchange and he/she is considered as a party to the contract and the death or incapacity (Arabic: حَجْر) of each of drawer (Arabic: مُحیل, assignor) or creditor (Arabic: مُحْتال, beneficiary of a draft) or drawee (Arabic: مُحال ‌عَلَیه, assignee) between offer (Arabic: إیجاب) and the last acceptance (Arabic: قَبول) causes the extinction of the validity of the agreement (Arabic: تَراضی, mutual consent). In addition, among the rules of bill of exchange and issues which are discussed in jurisprudential texts and civil law can accept the validity of cession of debt and novation directly in Shīʿa jurisprudence and Iranian law. Thus, contrary to what was common in Roman law and old French law, the “active deb” (claim), like tangible assets can be transferred to another even without the consent of the debtor. Also, unlike Roman Law and Old and New French Law (before the 2016 and 2018 reforms), “debt” is separate from obligor and the debtor can transfer the debt to a third party with creditor’s consent by materializing this constructive being which has long been accepted in Shīʿa jurisprudence and finally recognized it after centuries of disagreement and doubt in 2016.

scientific

The Irreferable (Not-Referable) of Transactions with Fraudulent Conveyance (Intending to Evade the Payment of Debt or Transaction in order to Avoid Liability) in Iranian Law with a View to French Law and an Attitude on the Unified (Uniform) Judicial Precedent No. 774 on April 9, 2019

majid Aziziyani

Volume 15, Issue 28 , December 2023, Pages 267-290

https://doi.org/10.30513/cjd.2022.3876.1653

Abstract

A comparative study of the unreliability of transactions with the intention to escape from religion in Iranian and French law; With a view to the uniform judicial precedent judgment ... Read More

scientific

Jurisprudential Analysis of the Status of Taking Possession of Bequest (Legacy) as a Result of Murdering a Testator by the Legatee

Hamid Masjedsaraie; Hasan Porlotalah; Reza Elhami

Volume 15, Issue 28 , December 2023, Pages 291-318

https://doi.org/10.30513/cjd.2021.2779.1492

Abstract

The murder of the testator by the heir in testamentary disposition (testament for disposition of personal property), while challenging and lacking in research background, raises the ... Read More

scientific

Distribution of Civil Liability Based on the Amount of Fault in Multiplicity of Accidental Causes from the Perspective of the Jurisprudence of Ahl al-Bayt

Saied Hassan Vahdati Shobeiri; Saied Bagher Muhammadi

Volume 15, Issue 28 , December 2023, Pages 319-342

https://doi.org/10.30513/cjd.2021.2412.1441

Abstract

The distribution of liability is one of the most complex discussions related to civil liability. It is difficult to know the contribution of each multiple causes (grounds), because ... Read More

Volume 17 (2025)

Volume 16 (2024)

Volume 15 (2023)

Volume 14 (2022)

Volume 13 (2021)

Volume 12 (2020)

Volume 11 (2018-2019)

Volume 10 (2017-2018)

Volume 9 (2016-2017)

Volume 8 (2015-2016)

Volume 7 (2014-2015)

Volume 6 (2013-2014)

Volume 5 (2012-2013)

Volume 4 (2011-2012)

Volume 3 (2010-2011)

Volume 2 (2009-2010)

Volume 1 (2008-2009)

Volume & Issue: Volume 15, Issue 28, December 2023, Pages 1-362

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