مطالعات فقه اسلامی و مبانی حقوق (Aug 2023)

A Feasibility Study of Receiving Remuneration by a Benefactor in the Imamiyyah Jurisprudence and the Statutory Law of the Islamic Republic of Iran

  • Abbas Karimi,
  • Amir Abbas Askari

DOI
https://doi.org/10.22034/fvh.2022.12409.1493
Journal volume & issue
Vol. 17, no. 47
pp. 05 – 30

Abstract

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One of the causes of the distinction (termination) of Ḍamān (Arabic: ضَمان, liability) is doing the act with the motivation of benevolence in Imamiyyah jurisprudence. This aspect of the rule of benefaction (Arabic: اِحْسان) has also been taken into consideration in statutory law of Iran, including Article 510 of the Islamic Penal Code Adopted on 2013. The consideration of the creation of liability for the benefacted person (Arabic: مُحْسَنٌ¬إلَیْه) is another aspect for the rule of benefaction; that is, the benefacted person must pay the costs of benefactor or his/her remuneration, if the benefactor (Arabic: مُحْسِن) conducts an action motivated by benefaction which costs benefactor or there was a remuneration in the custom for benefacted person’s action. There is a difference of opinion among Imamiyyah jurists in accepting this aspect. Well-known jurists have the opposite opinion, but there is more tendency to accept the second aspect of the rule of benevolence among jurists and some consider the basis of Article 306 of the Civil Code of the Islamic Republic of Iran to be the rule of benevolence. We have tried in this article to answer the question of whether it is possible to accept the proving aspect of being liable of the rule of benefaction or not. The analytical-descriptive method and library resources in order to answer this question were used to examine the views of jurists. The result of the research shows that the second aspect of the rule of benefaction can be accepted by identifying the pseudo-contract (quasi-contract) caused by the rule of benefaction; because being benevolent is equal to the intention of giving (animus donandi) and is not an obstacle to receiving a remuneration. This quasi-contract can be identified by interpretations of the rule of benefaction and the sanctity of a muslim’s act in this research.

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