"Feasibility of obtaining a guarantee for non-satisfied interests in corrupt contracts In Iranian Law and Imami Jurisprudence"

Subject Areas : فصلنامه مطالعات میان رشته ای فقه

Alireza Mohammadbeyki ¹ , hoseein asadzadeh ² , Meisam jamali ³

1 - faculty member of jurisprudence and Islamic law, Islamic Azad University, Central Tehran Branch, Islamic Azad University, Tehran, Iran.
2 - Shahid Karimi Street, Block D 4, Unit 6, Tehran
3 - PhD student in Fiqh and Fundamentals of Law at Shahid Motahari University

Received: 2022-11-21 Accepted : 2023-01-10 Published : 2023-03-21

Keywords: liability, Civil liability, Usurpation, unused benefits, invalid contract, liability for presumption of possession,

Abstract :

Although the principle necessarily is that the legal subjects´ assets to be protected; but today, we see that due to different reasons some gap intervenes between an owner and their assets. Examples for this issue are usurpation and also delivery by an invalid contract. There is no doubt about the requirement of recovering or substituting a property usurped or delivered by an invalid contract. Also, there is little doubt about the guarantee for the received benefits. But, regarding the fact that whether it is feasible for the unused benefits to be realized or not, we see a diversity of comments, i.e., we see that the law falls silent about these issues, and there is a diversity of jurisprudential rules along with lack of comprehensiveness of subjects, therefore, the necessity of the present research becomes justified. Thus, by descriptive-analytical methods, the present research tried to review and analyze the jurisprudents´ and lawyers´ positions regarding realization of unused benefits claims in an invalid contract. The results showed that the issue in Islamic jurisprudence has been a disputed issue since the past, although, by adducing evidences such as the rule of presumption of possession, consensus, and rule of equality of rules received for an invalid contract with usurped institution, accepting the rule of liability for unused benefits in an invalid contract seems to be reasonable; moreover, from the legal perspective, although civil code provides no expressed rule on unused benefits in invalid contracts, by correct interpretation of the available rules, it can be ruled for liability for unused benefits.