Effects of Civil Liability Abuse of Emergency Rule in Iranian and French Law

Document Type : Original Article

Authors

1 M.A, Tasouj Department, Islamic Azad University, Shabestar, Iran: Correspondence author

2 PhD, Public International Law, Science and Research Unit, Islamic Azad University, Tehran, Iran.

Abstract

An abuse of emergency is a situation in which an unfair contract is made to a person in an emergency Is imposed and the distressed person, due to these emergency conditions, accepts an excessive commitment against her/his will and consent or waives his right to the other party. In the law of most civilized countries, contracts based on the abuse of urgency are considered distinct from emergency transactions and are subject to separate provisions. In our country's law, Article 179 of the law, which is adapted from the law of France, deals with this issue and in such cases, for the distressed, the right to amend the contract is considered. But most jurists believe that this article is specific to shipping and maritime affairs and cannot be generalized to all cases of emergency abuse. Therefore, different theories have been expressed, including validity, invalidity, right of termination, non-influence and right of adjustment. As one of the results of this research, it can be said that contract modification theory has advantages that other opinions do not have. This theory can also be confirmed by the basis of the abuse of rights in Iranian law, which is the "no harm rule".

Keywords

References

Abdipour, Ebrahim, (1997), A Comparative Study of the Concept and Effects of Emergency in Civil Law, Qom, Qom Seminary Propaganda Office.
- Alishahi Ghaleh Joghi, Abolfazl and Danesh Nohad, Mohammad, (2017), Rule of Emergency in Civil Liability of Individuals and Government, Quarterly Journal of Jurisprudential and Principled Studies, Third Year, Sixth Consecutive Issue.
-Amiri Ghaem Maghami, Abdolmajid, (2006), Law of Obligations, Tehran, Mizan Publishing.
- Bariklo, Alireza, (2003), Guarantee of legal implementation of the abuse of the emergency situation of the contracting party, Journal of Private Law, No. 4.
-Barry Nicholas, (1992),the fernch law of Contract(2th/ ed: Oxford, clarendon Press.
-Colin et Capitan, (1953),Cours elementaire de droit civil Francais par de la morandiere. Paris. Dalloz.
-Flour et Aubert-(1965),Droit Civil, obligations, t,i. Acts juridiques, paris.
-Guestin, A.G, (1986),Anson s law of Contract(26/ed: oxford, Clarendon Press.)
-Ghafourian, Ahmad, (1981), The Role of Emergency in Civil Liability, Journal of the Faculty of Law and Political Science, University of Tehran, No. 22.
-Haeri Shahbagh, Seyed Ali, (1979), Description of Civil Law, Ch 1, Tehran: Ganj-e-Danesh Publications.
-Hezaveh, Mohammad Reza, (1975), A Study and Comparison of Reluctance in Civil Law of France, England, Islam and Iran, Master Thesis in Private Law, University of Tehran.
-Hosseini Ameli, Seyyed Mohammad Javad, (2007), Al-Muftah al-Karama in explaining the rules of Allama, Beirut, Al-Bayt Institute.
-Hakimian, Ali Mohammad, (1976), jurisprudential ruling on the abuse of urgency and its effect on the contract, Journal of Jurisprudential Research, Volume. 13, No. 2.
- Jafari Langroudi, Mohammad Jafar, (2017), Legal Terminology, Ch 30, Tehran, Ganj-e-Danesh.
-Jafari Langroudi, Mohammad Jafar, (1980), Legal Terminology, Ch 33, Tehran, Ganj-e-Danesh.
-Jafari Langroudi, Mohammad Jafar, (2009), Encyclopedia of Civil and Commercial Law, Tehran, Ganj-e-Danesh.
- Katozian, Nasser, (1980), non-contractual obligations, coercive guarantee, Tehran, Ganj-e-Danesh Publishing.
- Katozian, Nasser, (2015), Civil Law, General Rules of Contracts, Vol. 1, Ch. 2, Tehran, Ganj-e-Danesh.
- Katozian, Nasser, (2009), Certain Contracts (Partnerships and Peace, Tehran, Ganj-e-Danesh Library
-Khomeini, Ruhollah, (1985), Kitab al-Bayy, Qom, Ismailian Institute, vol.
- Mojahed, Afshin, (1980), Civil Liability Due to Emergency in Transactions from the Perspective of Iranian and French Law, Journal of Research and Studies of Islamic Sciences, Third Year, No. 27.
Mohaghegh Damadeh, Seyed Mostafa, (2012), Rules of Jurisprudence, Tehran, Islamic Publishing Center.
- Malakouti Hashjin, Seyed Hossein, (2014), A Reflection on the Interpretation of the Principle of "Deprivation of Legal Authority" in the Doctrine of Administrative Law of England and Iran, Institute of Humanities and Cultural Studies, No. 40.
-Mazeaud (H.J.L) et Tunc, (1965), Traite theorique et Pratique de la responsabilite civile Delictuelles et Contractuell. 6 ed. Paris.
-Najafi, Sheikh Mohammad Hassan, (1983), Jawahar al-Kalam, 43 volumes, seventh edition, Beirut, Dar Al-Ahya Al-Tarath Al-Arabi.
- Nourabadi, Alireza, (1976), Abuse of urgency in Imami jurisprudence, Iranian law and the Roman-German legal system, Master Thesis in Islamic Education and Private Law, Imam Sadegh University (AS).
- Norouzi, Hossein, (2001), Urgency in Legal Practices and Civil Liability with a Comparative Study in French Law, Master Thesis in Private Law, Imam Sadegh University (AS).
-Parsapour, Alireza, (2003), Urgency in Civil Liability Law, Mofid Magazine, consecutive 40.
-Parvin Nabi, Mehdi, (2014), Jurisprudential and Legal Review of Civil and Criminal Liability Due to Emergency, Master Thesis - Jurisprudence and Fundamentals of Law, Islamic Azad University of Tehran Markaz.
-Qara Daghi, Ali Mohi-ud-Din, (2008), The Origin of Satisfaction in Contracts, Beirut, Dar al-Bashir al-Islamiya.
-Qara Daghi, Ali Mohi-ud-Din, (2008), The Origin of Satisfaction in Contracts, Beirut, Dar al-Bashir al-Islamiya.
-Ribrt et Boulanger.(1956-1957)- Traid de Drait Civil d”apres la traite de planiol, t.I.II,paris.
- Shahidi, Mehdi, (1980), Civil Law 3, Tehran, Majd Publishing.
-Shahidi, Mehdi, (1977), Formation of Contracts and Obligations, Vol. 1, Tehran, Majd Publications.
-Safaei, Seyed Hossein and Rahimi, Habibollah, (2010), Civil Liability) Requirements outside the contract, Ch 1, Qom, Yaran Publications.
- Safaei, Seyed Hossein, (2012), General Rules of Contracts, Tehran.
-Tabatabai Qomi, Seyyed Taghi, (1989), Basics of Minhaj Al-Saleheen, Qom, Mofid Bookstore, Vol.
-Savatier (R).(1951), Traite de la responsabilite civile en droit francais. Paris.
-Seriaux, Alain,(1995), droit des Obligations(Paris, University Oress de France.
-Treitel, H.(1995),The law of Contract(9 ed: London, Maxwell $ Sweet.
-Tusi, Sheikh Muhammad ibn Ja'far, (1929), Al-Mabsut, Mortazaviyah School.
-Uber, Jean-Luc; Dotiole, France va Clar, (2011), Law of Obligations: Contract, Translation and Research, Majid Adib, Tehran, Volume.
Journal of Studies in Islamic Law & Jurisprudence
Volume 15, Issue 32
December 2023
Pages 73-104

Files

Share

How to cite

Statistics