Analysis of the Nature of the Fulfillment of the Obligation in Iran and in France Civil Codes

Zahra Babajani, Saeid Kheradmandy, Mohamad Javad Jafari

Abstract

Given the importance of resolving the ambiguities and providing an accurate interpretation of the law, herein is the examination of various opinions, legal rights regarding the ambiguity of Article 265 of Iran Civil Code, which provides: "If anyone gives property to another, it is deemed that he has not done so without consideration; ... " and compare it with French law, which has been a matter of dispute over the years between lawyers. Some of them consider this Article as a proof for that a person giving property is under obligation, and they believe that the request for the expropriation of property should prove not being obliged to give and deserving the repayment of the property, but others believed in the lack of certainty on obligation of the giver and require the proof of entitlement to receive on the property receiver.

The findings of this research show that what caused conflicting opinions in courts was due to: 1- The Concise Article 265 of Iran Civil Code. 2. The lack of attention to the legislator's ultimate goal for public interest. 3. Lack of distinguish between "giving property" And "Paying money to another" among jurists in the interpretation of Article 265 of the Criminal Code of Iran and its adaptation to Article 1235 of the Criminal Code of France, because this article does not say that anyone who gave financial assistance to someone it is deemed that he has not done so without consideration; so he can refund it.

In fact, the cash is not to be attributed to a property or commodity, since in giving property of other seems to give borrower not to fulfill promise, and in case of cash it is better to take into account the circumstances and the condition governing the legal relationship between the parties and then deduce the case verdict. The result of this deduction is the " presumption juris tantum " that will persuade the conscientiousness of the judge.

Keywords: payment, fulfilment of the obligation - without consideration appeal- presumption juris tantum


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DOI: 10.15408/jch.v7i1.10716

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