rejection of the exclusion theory of usurpation from the general rules of civil liability

Subject Areas : فصلنامه مطالعات میان رشته ای فقه

rasool malakooti ¹

1 - Assistant Professor. Departement of law. Pardis Branch. Islamic Azad University. Tehran. Iran

Received: 2021-01-02 Accepted : 2021-02-27 Published : 2021-02-19

Keywords: Law, jurisprudence, Civil liability, Guarantee, Usurpation,

Abstract :

Theory of severe encounter with the usurper causes the rules of the usurped institution to be considered strict, while in other sources there is no such civil liability. This attitude and the lack of need for harm and causation, has caused most lawyers to analyze the rules governing this institution apart from the general rules of civil liability. In this article, an attempt has been made to invalidate the fegh attitude and pay attention to the structure of the civil law, and to prove the impossibility of this separation. It seems that the difference between dealing with the usurper and other sources of civil liability is not due to a difference in the nature or rules of this institution, but to an imperfect view of the concept of financial guarantee in jurisprudence. Guarantee in jurisprudence means creating an obligation against another, the guarantee of its implementation is crystallized in three longitudinal forms of equal return, retribution and payment of price. In law, however, the concept of civil liability, which is equivalent to the term guarantee, is merely narrow to the third form, the obligation to pay damages. This self-made constraint in the concept has led to the impossibility of applying the rules and pillars of the usurpation institution to the general pillars of the guarantee and its severity