Comparative Analysis of the Legal Nature of the Contract of Gift in Iranian Civil Law and Western Legal Systems
Subject Areas : حقوق مدنیAfrooz Gholamzad Kohnesari 1 , Mohsen Khakzad 2 , Mostafa Khazal Vashi 3
1 - Student of Master’s Degree in Private Law, Department of Law, Ahrar Institute of Higher Education, Rasht, Iran.
2 - Assistant Professor of Public Law, Department of Law, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran.
3 - Faculty Member in Criminal Law and Criminology, Department of Law, Faculty of Humanities, University of Baghdad, Baghdad, Iraq.
Keywords: Contract of Gift, Donor, Donee, Delivery (Possession), Revocation of Gift, Comparative Law, French Law, English Law,
Abstract :
Gift, as one of the most important gratuitous institutions in private law, has been regulated with different legal natures and effects in various legal systems. This article, using a descriptive–analytical and comparative approach, examines the legal nature of gift in the legal systems of Iran, France, and England, and seeks to clarify the fundamental similarities and differences of this institution. The findings of the research indicate that in Iranian law, gift is a specific, gratuitous, and proprietary contract rooted in Imami jurisprudence, the realization of which is subject to delivery (possession), and the principle is the revocability of the donor. In contrast, in French law, gift is recognized as a formal and ceremonial legal act that is realized through the execution of an official deed, and the principle is its irrevocability in order to ensure stability and security in transactions. In English law, gift is mainly analyzed as a unilateral legal act (gift) outside the framework of the classical contract, in which the element of actual or constructive delivery of property plays a fundamental role in its realization, and once completed, revocation is generally not possible. The overall conclusion of the article is that the differences in the legal nature of gift in these three systems reflect the structural differences among jurisprudence‑based, Romano–Germanic, and common law legal systems. A comparative study of this institution can therefore provide a basis for rethinking the efficiency of the rules governing gifts and for enhancing legal certainty in gratuitous legal relations.
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