The Necessity of Adherence to Liability Benefits: An Analysis of Articles 387 and 558 of the Civil Code

Document Type : Research Paper

Authors

1 associate professor in private law, university of qom. qom. iran.

2 Assistant Professor of Fiqh and Fundamentals of Islamic Law, Faculty of usul al deen college, Qom. Iran.

3 L.L.M in the law of documents and commercial contracts, University of Judicial Sciences and Administrative Services (corresponding author)

4 PhD student in private law, Tehran Branch, Islamic Azad University, Tehran, Iran.

Abstract

In the realm of financial transactions, the customary exchange of money serves as the foundation, aiming to satisfy the needs and requirements of each party involved. In this context, the mastery of rights by both buyers and sellers becomes imperative. However, situations may arise where, before the property is handed over to the buyer, it is destroyed due to unforeseeable events beyond the seller's control. In such cases, the transaction deviates from the parties' intentions and customary practices. If, during this transaction, the seller has already received payment, Article 387 of the Civil Code mandates the return of the funds to the buyer. This reimbursement is contingent on the non-transfer of the property that was originally part of the sale.
Moreover, the goods being traded might possess inherent interests separate from the primary property, complicating the status of these additional interests. Article 387 of the Civil Code only addresses the seller's obligation to refund the transaction funds to the buyer, revolving around the concept of the "destruction of the object of sale before delivery." Nevertheless, this legal provision does not explicitly delineate the consequences of such annulment. As a result, a degree of ambiguity emerges when dealing with this scenario. Jurists, recognizing this gap in the law, have delved into this issue, seeking clarity and resolution.
This matter has spurred extensive debates in both Imamiyyah and Sunni jurisprudence, leading to varying interpretations. Some scholars, in their attempt to explain the effects of annulment, have created an alternative rule known as "advantages and interests of an object follows the risk." This rule aims to mitigate the ambiguity surrounding the annulment of pledge agreements.
Additionally, some scholars have posited that property ownership temporarily reverts to the seller, highlighting that during this brief period, the seller is obligated to refund the transaction amount. However, all these perspectives converge on the idea that the property ultimately belongs to the buyer, with the benefits and interests inextricably tied to the buyer's claim. This viewpoint contradicts the Shariah rule of "advantages and interests of an object follows the risk," a principle upheld by the Prophet of Islam, which places the responsibility for benefits and interests on both the buyer and the seller.
It is important to note that the rule of "advantages and interests of an object follows the risk" is divinely ordained, whereas the rule of the "destruction of the object of sale before delivery" stems from scholarly interpretation. This stark contrast highlights a fundamental conflict in unassigned law: the ownership status of benefits. The preference for the sharia rule of "advantages and interests of an object follows the risk" over the rule of "destruction of the object of sale before delivery" dictates that the benefits continue to belong to the seller, aligned with the remaining property's ownership status.
Furthermore, the acceptance of the rule of "advantages and interests of an object follows the risk" in relation to "commandite" has been acknowledged in civil law through extensive jurisprudential studies. Consequently, it has been established that adhering to the benefits guaranteed to each party in a properly executed agreement, where both parties maintain control over the property involved, is considered legally valid and representative.
In conclusion, this research underscores the necessity of upholding the benefits guaranteed by the law, as clarified in articles 387 and 558 of the Civil Code. It establishes that the determination of benefits for each party in a contract hinges on the guarantee bestowed upon them, as defined by the explicit language of the law and jurisprudence. This theory posits that one benefits from the guarantee and bears the responsibility for any loss incurred in connection with the property. This novel theory, developed through extensive analysis of the Civil Code's articles, provides a unique perspective that has not been explored in previous legal studies.

Keywords

Main Subjects

References

Ansari, M. (1990). Al-Makasab (Ansari - Kalantar), Qom, Dar al-Kitab. [in Arabic]
Ahmadzadeh Bazaz, S.A, Gublobi Darafshan, S.M., H. & Gublobi Darafshan, S.M.S. (2016). A comparative discussion on the rule of loss of the sale before receipt in Article 387 of the Civil Code (a comparative study in Imami jurisprudence, (Iranian law and the international sales convention), Comparative Research of Islamic and Western Law, 4(2), 1-30, doi: 10.22091/csiw.2018.2452.1253. [in persian]
Allameh Helli, H. (1954). Mokhtalaf al-Shi'a, Qom, Al-Nashar Islamic Publishing House. [in Arabic]
Allameh Helli, H. (1999). Tahrir al-Ahkam, Qom, Imam al-Sadiq Foundation, peace be upon him. [in Arabic]
Alidosti, N., Keshavarz, A. (2018). Recognizing the basics of the condition of profit guarantee in mudarabah and civil partnership, Religion and Law Quarterly, 7 (23): 77-106. [in persian]
Al-Masri, known to Ibn Najim, Z.D (1980). Al-Bahr al-Raiq, Beirut, Al-Islam Times. [in Arabic]
Al-Talqani, Ismail Ibn ebad, known as Al-Sahib Ibn ebad (2009). Al-Muhit fi Al-Lughah, published by Al-Shamila. [in Arabic]
Ibn Manzur Al-Ansari, Muhammad bin Mokaram, (1993). Lisan Al-Arab, Beirut, Dar Sader. [in Arabic]
Bustani, F.A. (1955). Farhang Abjadi, Tehran, Islamic Publishing House. [in Arabic]
Bahrul-Uloom, M. (1943). Bilgha al-Faqih, Tehran, School of Sadiq (peace be upon him). [in Arabic]
Ehsai, I. A. J. (1983). Awali Al-Leali Al-Aziziya, Qom, Seyyed Al-Shohada Institute (AS). [in Arabic]
Fazl Hawamdeh, S. (2016). Al-Kharaj Basis and Contemporary Applications, Journal of Scientific Studies of Humanities and Social Sciences, No. 8. [in Arabic]
Farahidi, Kh. (1988). Al-Ain, Qom, Al-Hijrah Institute. [in Arabic]
Horr Amoli, M. (1995). Vasael al Shia, Qom, Ahl-Al-Bayt Institute (peace be upon them). [in Arabic]
Helli, J. (1987). Islamic Laws, Qom, Ismailian Institute. [in Arabic]
Helli, J. (1991). The final point, Qom, Islamic Publications. [in Arabic]
Hashemi Shahroudi, M. (2001). Kitab al-Madarabah, Qom, Ahl al-Bayt Center for Fiqh and Islamic Encyclopaedias. [in Arabic]
Ibn Fahd Hali, A. (1950). Al-Mutsaghat Man Sharh, Mashhad, Islamic Research Council. [in Arabic]
Katouzian, N. (2019). General Rules of Contracts, Tehran, Ganj Danesh. [in persian]
Khomeini, R. (1972). Kitab al-Bai (Imam), Tehran, Imam Al-Khomeini Works Editing and Publishing Foundation (Quds Sarh). [in Arabic]
Kheradmandi, S. (2017). The provisions of the rule of al-kharaj with guarantee and similar rules, Biquarterly Journals of Jurisprudence, 6(11): 29-58. [in persian]
Khaki Nihad, M., Rajabzadeh, A. & Mazloum Rahani, A. (2022). Jurisprudential examination of the loss of goods before receipt and its effect on the transfer of ownership, Scientific Quarterly of Economic Jurisprudence Studies, 4(2), 181-200. doi: 10.22034/ejs.2022.336483.1216 [in persian]
Mohagheq Karki, A. (1993). Al-Maqased Mosque, Qom, Al-Bayt Foundation (peace be upon him). [in Arabic]
Maalouf, L. (1952). Al-Manjad, Qom, Ismailian. [in Arabic]
Mahna, A. (1992). Lasan-ul-San, Beirut, Dar al-Katb al-Elamiya. [in Arabic]
Mamaqani, M. (1905). Ghayat al-Amal fi Sharh al-Makasab wa al-Ba'i, Qom - Iran, Al-Zakhaer al-Islamiya Majmam. [in Arabic]
Mirdadashi, S. M. (2019). A look at the concept of trade in mudarabah contract, Jurisprudential and Philosophical Studies, 11(42): 1-14. [in Arabic]
Milani, M. (2008). Kitab al-Baya (Milani), Qom, Islamic Studies Center. [in Arabic]
Makarem Shirazi, (2001). Al Qavaed Al fighhiyah, Qom, Publication office of Ayatollah Makarem Shirazi. [in Arabic]
Naini, M. (1992). Al-Rishah al-Fiqhiyyah, Qom, Imam Reza Institute of Islamic Studies (peace be upon him). [in Arabic]
Nasa'i, A. (1986). Al-Mujtaba Man Al-Sunan, Aleppo, Islamic Press School. [in Arabic]
Nishaburi, A. (1988). Al-Muntaqi Man al-Sunan al-Musnadah, Beirut, al-Kitab al-Khattura. [in Arabic]
Nikoi, M. & Simai Saraf, H. (2018). Rereading rational independence in the light of Rawls' argumentative method: a way to develop self-founded reason in jurisprudence and principles. Journal of Comparative Law, 6(2), 99-122.doi: 10.22096/law.2019.65298.1106 [in persian]
Qasimzadeh, M. (2013). Principles of Contracts and Obligations, Tehran, Justice. [in persian]
Qazvini,I.­M. (n.d). Sunan Ibn Majah, Cairo, Ministry of Endowments. [in Arabic]
Qoshiri Al-Nishabouri, M. (n.d). Sahih Muslim; Beirut, Dar Jil + Dar Al Afaq. [in Arabic]
Rostam Baz Lebanoni, S. (1923). Sharh al-Majlah, Al-Beirut Society. [in Arabic]
Samarqandi, A. (1993). Tohfat Al-Foqaha, (Beirut-Lebanon, Dar al-Kitab al-Elamiya). [in Arabic]
Sarakhsi, M. (1993). Al-Mabsut, Beirut, Daral-e-Marefa. [in Arabic]
Sabki, A. (1990). Al-Ashbah and Al-Nazar, Beirut, Dar al-Kitab Al-Elamiya. [in Arabic]
Shoareyan Sattari, A. (2021). Description of the International Sale of Goods Convention, Tehran, Shahr Danesh. [in persian]
Shirazi, M.t (1951). Hashiyyah al-Makasab, Qom, Al-Sharif al-Radi. [in Arabic]
Sheybani, M. (n.d). Asl, Karachi, Department of Al-Qur'an and Islamic Sciences. [in Arabic]
Salehi Mazandarani, M. (2013). The book of jurisprudential review of civil liability resulting from judicial decisions with a look at some legal systems, first, Qom; Islamic Science and Culture Research Institute. [in persian]
Tirmidhi, M. (n.d). Sunan al-Tirmidhi, Cairo, Ministry of Endowments. [in Arabic]
Tousi, M. (2010). Al-Istibasar Fima Akhtolf Man Al-Akhbar, Tehran, Dar al-Kutb al-Islamiyya. [in Arabic]
Tousi, M. (1987). Al-Khalaf, Qom, Al-Nashar al-Islami. [in Arabic]
Tousi, M. (1967). Al-Mabssut, Tehran, Al-Mortazavi School. [in Arabic]
Tabatabaei, A. (1984). Riaz al-Masail, Qom, Al-Al-Bayt (peace be upon him). [in Arabic]
Zarkoshi, A.B. (1985). Al-Manthor fi al-Qasa', Kuwait, Ministry of Awqaf. [in Arabic]
Zoheyli. M.M. (2006). Jurisprudence and its applications in al-Mahabh al-Faqr, Damascus, Dar al-Fekr. [in Arabic]
Zarei Sabzewari, A.A. (2009). Al-Qasa'e al-Fiqhiyyah fi fiqh al-Imamiyah, Qom, Jamaat al-Madrasin fi Hawza al-Ilamiya Baqm. Islamic Publishing House. [in Arabic]
Journal of Legal Studies
Volume 15, Issue 4 - Serial Number 50
December 2023
Pages 135-168

Files

Share

How to cite

Statistics