Document Type : Research Article
Authors
1
Assistant Professor, Department of Private Law, Faculty of Law and Political Science, Allameh Tabataba'i University, Tehran, Iran.
2
LLM Student in Private Law, Department of Private Law, Faculty of Law, College of Farabi, University of Tehran, Tehran, Iran.
Abstract
∴ Introduction ∴
This article analyzes the criteria for identifying ‘waste in law’ or ‘as waste’ (talf-e hokmi) within Islamic law. The analysis is conducted by studying the rule of ‘transfer to a third party of good faith’ in judicial practice and examining the proposal to amend Articles 323 and 325 of the Iranian Civil Code. The concept of ‘waste in law’ has been frequently cited in recent years in Iranian laws and judicial practice, often to protect public interest and the good faith of third parties. Judicial practice particularly relies on this criterion when property has been transferred to a good faith third party, especially if changes, such as constructing a building on the land of another, have been made in the subject-matter of the contract. The primary goal of this investigation is to resolve disputes between courts and create a uniform practice regarding the application of this concept.
∴ Research Question ∴
The fundamental question addressed by this research is: What is the rule and criterion for the realization of ‘waste in law’ which has been used and cited in Iranian laws and judicial practice in recent years?. Furthermore, the study inquires whether it is possible to analyze and present the various criteria proposed in Imamiya jurisprudence concerning the identification of this rule into a single criterion format or more general criteria.
∴ Research Hypothesis ∴
It is hypothesized, and subsequently confirmed by the research, that the majority of the various criteria accepted by the Imamiya jurists can be interpreted under a general rule: the ‘absence of dominance’. This unifying criterion, however, is utilized in different contexts, sometimes in a very broad sense, sometimes in a very narrow sense, and sometimes in a conventional sense. The hypothesis further implies that this general jurisprudential criterion needs adjustment to accommodate modern judicial practice, which often focuses on the transfer of property to a third party of good faith.
∴ Methodology & Framework, if Applicable ∴
The study employs an analytical-descriptive research method. The methodology included an extensive study in Imamiya jurisprudential texts and an analysis of judicial practices. The framework focuses on systematically identifying and analyzing the diverse criteria for the realization of ‘waste in law’. The research aims to consolidate these varied criteria, originally posed in different jurisprudential sections, into a broader, more coherent conceptual framework.
∴ Results & Discussion ∴
The research established that the majority of criteria accepted in Imamiya jurisprudence concerning ‘waste in law’ can be summarized under the concept of ‘absence of dominance’. However, judicial practice in recent years has focused on the transfer of property to a third party of good faith as the criterion for ‘waste in law,’ especially when the property has undergone changes. This judicial emphasis has been incorporated into the proposal to amend Articles 323 and 325 of the Iranian Civil Code. From an analytical perspective, and to ensure compliance with Imamiya jurisprudential foundations, the study suggests that ‘waste in law,’ which is a legal presumption, is realized if two conditions are met: the ‘Volenti non fit injuria’ rule is applied (implying the owner's negligence or acquiescence), and the transferee is in ignorance of the right of others (good faith).
∴ Conclusion ∴
The primary criterion for ‘waste in law’ in Imamiya Jurisprudence is the ‘absence of dominance’. Despite this, judicial practice and proposed legal amendments have increasingly adopted the transfer of property to a good faith third party as the realization criterion, particularly where changes have been made to the property. To align this judicial trend with jurisprudential principles, the research suggests that ‘waste in law’—a legal presumption—should be recognized if the owner's conduct supports the application of the Volenti non fit injuria rule and the transferee acts in ignorance of the rights of others. This proposed analytical framework provides a robust basis for amending the Iranian Civil Code and establishing a consistent judicial practice.
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