نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار، گروه حقوق، دانشکده علوم اجتماعی و فرهنگی، دانشگاه جامع امام حسین علیه‌السلام، تهران، ایران.
2 دانشجوی دکتری حقوق عمومی، گروه حقوق عمومی و حقوق اقتصادی، دانشکده حقوق، دانشگاه شهید بهشتی «ره»، تهران، ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
∴ Introduction ∴
Conflict in the general definition of ‘contract’ found in Article 183 of the Iranian Civil Code and its discordance with the definitions of specific contracts, such as the sale contract in Article 338 of the Iranian Civil Code, constitute controversial legal issues. Article 183 of the Iranian Civil Code defines 'contract' as having an obligatory nature, defining it as an agreement where one or more persons undertake an obligation to another party. Conversely, Article 338 defines the sale contract by referencing the vesting of ownership. This duality in the definitions of contract has given rise to the debate of how ‘vesting ownership’ can be perceived as an ‘obligatory’ nature. This research critically examines the interpretation of Article 183 of the Iranian Civil Code by drawing upon Imamiya Jurisprudence, English law, and French law to understand the definition of contract.
∴ Research Question ∴
The central question of the present research focuses on the feasibility of resolving this conflict between the two concepts of obligation (Ta'ahhud) and ownership (Milkityat) that are embodied within the definitions of contract found in the Iranian Civil Code.
∴ Research Hypothesis ∴
The hypothesis posits that the existing conflict is one of the examples of fundamental conflicts in the Iranian Civil Code which cannot be resolved. This hypothesis is supported by examining the dual ideological roots of the Iranian Civil Code, which stem from both the Roman-Germanic tradition and the jurisprudential (Fiqh) tradition.
∴ Methodology & Framework, if Applicable ∴
The study utilizes an inferential-interpretive method combined with a descriptive-analytical approach. The methodology involves referencing the viewpoints of jurists (Fuqaha) and lawyers, and critically interpreting and criticizing their theories to prove the validity of the hypothesis. The framework specifically analyzes the dual nature of the Iranian Civil Code by contrasting contract definitions within the Roman-Germanic system with the concepts of contract and covenant (Ta'ahhud) found in Imamiya Jurisprudence.
∴ Results & Discussion ∴
The research confirms that the conflict is fundamental, as the categories of materials in the Iranian Civil Code related to the concept of contract originate from different intellectual foundations, making them generally non-collectable. The Roman-Germanic tradition (e.g., French Civil Code, Art. 1101) maintains an obligation-centric approach, viewing the contract's purpose as creating an obligation (Ta'ahhud) to perform or transfer. Conversely, Imamiya Fiqh emphasizes ownership (Milkityat) as the core justification for transactions, particularly for sale contracts, which are inherently transactional and ownership-based. Article 183’s definition, derived from the Roman-Germanic tradition, faces critical issues, including its failure to clearly include ownership contracts and its confusion of the contract itself with its legal effect (the obligation). Proposed solutions by Iranian legal scholars—such as interpreting 'Ta'ahhud' broadly or assuming that the obligation in ownership contracts is immediately executed—have been unsuccessful in reconciling this foundational difference.
∴ Conclusion ∴
The general definition of contract in Article 183 of the Iranian Civil Code, which emphasizes the obligatory nature, stands in fundamental contradiction to the ownership-based nature defined for specific contracts like sale (Article 338). This dichotomy arises from the Iranian Civil Code's adoption of two distinct and largely incompatible legal traditions: the Roman-Germanic obligation theory and the Fiqhi ownership theory. Consequently, attempts by legal scholars to achieve a satisfactory unified definition have largely failed. To reform the legal framework, it is proposed that the Iranian Civil Code should establish a clear distinction between the legal institution of "contract" (as a framework created by the law/Shar'iah) and the "act of concluding a contract" (as the act performed by the parties). The definition should ideally prioritize the transfer of ownership or legal rights rather than solely focusing on the creation of obligations.
کلیدواژه‌ها [English]
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