پژوهشنامه حقوق اسلامی (May 2023)
Identifying Criteria of ‘Waste in Law’ in Islamic Jurisprudence; by Analyzing the Rule of ‘Transfer to a Third Party of Good Faith’ in the Judicial Practice and a Plan to Amend the Iranian Civil Code
Abstract
In this article, the criteria for identifying ‘waste in law’ or ‘as waste’ in Islamic law, by studying the rule of ‘transfer to a third party of good faith’ in judicial practice and the proposal to amend the Articles 323 and 325 of the Iranian Civil Code, with the aim of resolving disputes between courts and creating a uniform practice in courts have been analyzed. The fundamental question is what the rule and criterion for the realization of ‘waste in law’ is, which has been used and cited in Iranian laws and judicial practice in recent years, and whether it is possible to analyze and present the various criteria that have been proposed in Imamiya jurisprudence to a single criterion format or more general criteria? With an analytical-descriptive research method and extensive study in Imamiya jurisprudential texts and judicial practices, it was concluded that the majority of the various criteria accepted by the Imamiya jurists can be interpreted in a general rule, i.e., ‘absence of dominance’. However, this lack of dominance is sometimes used in a very broad sense, sometimes in a very narrow sense, and sometimes in a conventional sense. In recent years, the judicial practice has adopted the transfer of property to a third party of good faith as a criterion for ‘waste in law’, especially if changes have been made in the subject-matter of contract. This is an idea that has also been applied in the proposal to amend some articles of the Civil Code. From an analytical point of view and in terms of compliance with Imamiya jurisprudential foundations, it is suggested that if the ‘Volenti non fit injuria’ rule is applied and the transferee is in ignorance of right of others, waste in law, which is a legal presumption, is realized.
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