Application of Article 265 of the Civil Code in negotiable instruments with an emphasis on judicial procedure

Document Type : Original Article

Authors

1 Ph.D. Student, Department of Law, South Tehran Branch, Islamic Azad University, Tehran, Iran.

2 Assistant Professor, Department of Law, Damavand Branch, Islamic Azad University, Damavand, Iran (Corresponding Author)

3 Assistant Professor, Department of Law, South Tehran Branch, Islamic Azad University, Tehran, Iran.

4 Assistant Professor, Department of Law, Varamin Branch, Islamic Azad University, Varamin, Iran.

Abstract

Article 265 of the civil code is related to, negotiable instruments. However, abstract presumption casts a shadow on negotiable instruments and means the separation of two legal relationships. The legal relationship is the basis for issuing of negotiable instruments and the legal relationship that is formed by the preparation of the instrument, but they are related to each other even though they are separate. This presumption is not specified and recognized in Iranian law, and in this sense, it is a alien concept in domestic law, and for this reason, judges are doubt to refer to this presumption in judicial decisions, but with the desire to refer to Article 265 of the civil code, practically accepted it and made the application of this article in negotiable instruments more rational and put an end to these doubts. Contrary to some harsh claims, regarding the absolute separation of negotiable instruments from basic and civil obligations, and according to the concept of the presumptions and by presenting reasons that can discredit this presumption, we have considered it relative. Therefore, when this presumption can only be raised against a third party in good faith, it seems unnecessary to refer to this presumption, despite the existence of Article 265 of the civil code, in negotiable instruments. Considering this case and the general jurisdiction of the courts and the non-appropriation or cancellation of the general provisions of the civil law by the special provisions of negotiable instruments and the emphasis of the constitution and the acceptance of judicial procedure, the possibility of applying Article 265 of the civil law in negotiable instruments is possible.

Keywords

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Journal of Studies in Islamic Law & Jurisprudence
Volume 16, Issue 36
November 2024
Pages 135-162

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