نوع مقاله : مقاله پژوهشی
نویسنده
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Modern economy has adopted the view that obligation, as a valuable property, should not be limited to the relation between the creditor and the debtor. Iranian law has adopted two mechanisms, i.e., the contract of guarantee and draft, for the transfer of claim. On the other hand, Article 292 of the Civil Code has recognized the new term “novation,” and immediately after that, Article 293 states that in the process of novation, guarantees of the prior debt would not extend to the subsequent debt. Since the Iranian legislator of the Civil Code took Articles 1271 and 1272 of the French Civil Code into consideration while writing the above-mentioned articles of the Iranian Civil Code, and the French law requires the creation of a new obligation following a novation, it is quite natural that the guarantees of the prior obligation are extinguished as a result of substitution. However, due care dictates that Clauses II and III of Article 292 of the Civil Code do not indicate a real novation but introduce guarantee and draft confirming the transfer of obligation rather than its substitution. On the other hand, the dominant view of Shiite jurisprudents, to which the Iranian Civil Code owes itself, recognizes the extinction of the guarantees of debt by guarantee and draft. In our opinion, the legislator—while writing Article 292 of the Civil Code—has wittingly taken the form from French law and replaced the unfamiliar institutions of “novation by substitution of debtor” and “novation by substitution of creditor” with the contract of guarantee and that of draft, which have proved to be very helpful in practice. In the legal systems of different countries, the two legal institutions of novation and transfer of obligation are usually recognized as two distinct entities having their own specific effects. However, in Iranian law, transfer of debt and novation have the same concept and effects. It is noteworthy that identical legal entities may have their own effects in each state. For instance, one may compare the institution of novation in Iranian law with that of novation in other legal systems in terms of its nature and effects.
کلیدواژهها [English]
)
