Exoneration of religion and the possibility of returning from it
Subject Areas : حقوق مدنیFatemeh Shad Nakhodchari 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: Acquittal, conditional absolution, withdrawal from absolution, fall of obligations, fall, rule of the irretrievable,
Abstract :
In the Iranian legal system, discharge is recognized as one of the important institutions of civil law and a means of nullifying obligations. According to the principles of Imami jurisprudence and the articles of the Civil Code, discharge is a voluntary act by which the creditor unilaterally waives his religious right, and as a result, the debtor is released from his obligation and the obligation is nullified. Article 289 of the Civil Code includes discharge as a means of nullifying obligations, and Articles 289 and 290 refer to its nature and effects. Given the important effects of this legal act on the relationship between the creditor and the debtor, analyzing the conditions and limits of its realization is of particular importance from a jurisprudential and legal perspective. Discharge may be absolute or conditional. One of its notable forms is conditional discharge, in which the creditor limits his right to discharge to a specific condition or conditions. In this context, the creditor may foresee the right of recourse for himself within a certain period when drafting the discharge. This right of recourse can be established in two ways: First, in an absolute manner and without dependence on a specific condition; and second, in a manner contingent on the realization of a specific event in the future, in such a way that the exercise of the right of recourse is subject to the fulfillment of that condition. However, the acceptance of such a structure in absolution faces jurisprudential and legal challenges. Among the most important problems raised is its conflict with the jurisprudential rule of "what is lost cannot be restored", which implies the impossibility of returning a lost right. Also, since absolution is classified as a right of recourse, The issue of the lack of flow of options in the iqā'at is also raised as an obstacle to accepting the right of recourse. Therefore, examining the possibility or impossibility of recourse to acquittal and analyzing its jurisprudential and legal foundations is a matter worthy of reflection in Iranian civil law. The purpose of this research is to explain the nature of conditional acquittal, examine the possibility of foreseeing the right of recourse in it, and analyze the jurisprudential and legal perspectives related to this issue.
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