پژوهشنامه متین (Dec 2022)
A Study of the Status of Imperative Rules in Civil Code and Jurisprudence of Transactions in the Light of Imam Khomeini’s Opinion
Abstract
Despite prevalence of jurisprudential discussions on the role of imperative rules in contracts, very little can be found in the works of legal thinkers – and equally – in the verdicts of the judiciary system. Jurists’ inattention to the difference between positive and imperative rules has resulted in many cases in disappearance of boundaries between property law and law of obligations. For instance, some jurists argue that obligation coming from an affirmative condition depends upon occurrence of ownership, also stating that undertaking an obligation in favor of a third party may cause issuance of positive rule of indebtedness. Given the above, the principal question in this study deals with underscoring distinction between imperative and positive rules and the status of either one in the law of obligations. Pinpointing examples of imperative rules in Civil Code with respect to its effects such as dispossession, lack of indebtedness, and lack of inheritance can be effective in interpretation of pertinent laws as well as verdicts of the judiciary system. In this paper, applying a descriptive-analytical method and resorting to library documents, we have tried to review the status of imperative rules in articles related to affirmative condition, interpretation of Article 959 of Civil Code, usurpation, and guarantee of discharging obligations in the light of Imam Khomeini’s opinion. An analysis of imperative rule indicates that first, it belongs to the act of obligee and its subject may be a property or an act, the latter paving the ground for imposition of imperative rule on obligations. Understanding Imam Khomeini’s opinion on this can create an appropriate ground for legalization of customary guarantee based on the guarantee of discharging obligations.
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