تمایزهای بنیادین «ضمان قهری» و «مسئولیت مدنی» از حیث مبنا، ارکان و احکام

What is studied under the title “Non-contractual indebtedness” in the  Imamiah jurisprudence is interpreted as “Civil Liability” in modern law. Despite some similarities, there is a substantive difference between them that non-contractual indebtedness in Imamiah jurisprudence is one of the causes of ownership and civil liability is one of the causes of obligation in Romano Germanic legal system. The importance of the issue becomes more apparent when we see a dual approach in this regard in Iranian law. On one hand, the Iranian Civil Act and the Islamic Penal Act address these issues under the influence of Imamiah jurisprudence, referring to them as non-contractual indebtedness and remaining faithful to the jurisprudential nature of non-contractual indebtedness. For example, in the first volume of the Civil Act, under the title “On property”, the second book is called “On the causes of acquisition”, the second part is titled "On contracts, transactions and obligations”, the second chapter is called  “On the obligations that are obtained without a contract. In this section, after discussing the general principles, a chapter titled “In Non-contractual indebtedness” is dedicated to matters that give rise to “Non-contractual indebtedness”. On the other hand, there is the Civil Liability Act in Iranian law, which is based on Roman-Germanic law. In this legal structure, by analyzing the relationship resulting from civil liability, the focus is on the relationship between two individuals rather than between a person and their property. The person causing harm is obliged to pay compensation without causing debt.
The present writing describes and analyzes the fundamental distinctions between non-contractual indebtedness and civil liability. It seeks to answer the question of what differentiates these two concepts and how this duality affects them. The authors' hypothesis is that there is a fundamental difference between non-contractual indebtedness and civil liability, resulting in different foundations, pillars and rules. Research shows that this fundamental difference has multiple consequences in the foundations, pillars and rules of these two concepts. For instance, while the foundation of civil liability is fault-based, the foundation of non-contractual indebtedness is based on the respect for the property of the believer. In the context of the Iranian Civil Act, the mere occurrence of damage to the property belonging to others triggers the responsibility of the person who caused the harm, regardless of whether they were at fault. In contrast, under the Civil Liability Act, a person is held responsible for compensating damages only if they committed a fault. Ignoring this distinction has had negative consequences in the Iranian legal system, leading to ambiguity in identifying the foundation of these concepts and often mixing the foundations of civil liability” and non-contractual indebtedness. The impact of not paying attention to this distinction is also evident when differentiating between “Direct Destruction” and “Indirect Destruction”. In common legal perception, unlike “Direct Destruction”, “Indirect Destruction” requires fault as a condition for triggering non-contractual indebtedness. However, the study shows that fault as the foundation is not generally accepted in either “Direct Destruction” or “Indirect Destruction” as a basis for non-contractual indebtedness. In fact, one could argue that it is the consideration of fault that allowed the Civil Liability Act to expand the scope of compensable harm compared to non-contractual indebtedness, which does not require proof of fault. In other words, having a broader protective scope under the Civil Liability Act is due to the acceptance of fault as its foundation.
The duality of non-contractual indebtedness and civil liability also exhibits significant distinctions regarding their pillars. For example, in terms of the scope of compensable harm, non-contractual indebtedness, based on the concept of ownership, is primarily limited to property damages. In traditional interpretation, property damages are further restricted to  the  actual property or profit. This minimalist perspective fails to adequately protect other types of harm, such as moral damages. It is noteworthy that none of the provisions in the Iranian Civil Act explicitly recognize compensable moral damages. This structure should not be considered inadvertent. In reality, this structure, accepted in this Act, does not allow recognizing this category of damages as compensable. In contrast, the Civil Liability Act, Without analyzing the resulting relationship to ownership and based on the concept of obligation, supports a significantly broader range of damages and thus provides more appropriate protection for the injured party. This difference is also evident in the context of the causation relationship. A lot of attention on establishing the relationship of real causation in the non-contractual indebtedness has led to the lack of identification of non-contractual indebtedness in relation to the act of a third party. This is despite the Civil Liability Act, which, by distancing itself from the necessity of establishing a real causation relationship, offers a more straightforward way to identify civil liability in cases such as liability arising act of a third party, making employers or the government accountable for the actions of their employees under certain conditions.
This duality between non-contractual indebtedness and civil Liability also leads to different rules. For example, regarding the extent of a judge's authority in issuing a judgment for compensation, there are clear differences that stem from an understanding of this duality, along with the reasons behind it. When considering the analysis of the relationship resulting from non-contractual indebtedness as a matter of ownership, the judge, when issuing a judgment, only takes into account the extent of the damage caused to the injured party. The judge does not have the discretion to consider factors such as the quality of the harmful party's behavior or their solvency or insolvency, which could influence the amount of the injured party's property. In this structure, only institutions such as insolvency are available to the judge to grant the debtor time to pay the debt. On the other hand, civil liability, in alignment with its duty-oriented nature and its diverse objectives, seeks to employ various considerations like the quality of the harmful party's conduct or their financial status in determining the amount of compensable damages. It does so with the help of tools such as justice­. It is clear that neglecting these distinctions can lead to difficulties in analyzing relationships between various legal provisions.
This paper aims to reveal multiple distinctions between non-contractual indebtedness and civil liability by focusing on their fundamental differences. It is only through understanding this duality that it becomes possible to provide suitable answers to some ambiguous questions regarding the relationships between legal provisions of Civil Liability Act and Civil Act.