500 Executions in One Prison Since October 2012

New Executions in Vakilabad- About 500 Executions in One Prison  Since October 2012- IHR Urges the International Community to Intervene  Immediately Iran Human Rights, February 24: On February 3 , Iran Human Rights (IHR) reported that secret executions in Vakilabad prison had resumed  after several months’ halt due to international reactions. The executions began in October 2012  and have been taking place on Wednesdays and Sundays every week. On a few occasions there  have been three weekly executions. Each time, at least ten prisoners are hanged; on two occasions  in November and December, thirty-five and fifty prisoners were executed respectively. The executions  take place in complete secrecy, and the phone lines of the prison are cut off several hours before the  executions. - Neither the prisoners nor their families and lawyers (if they have them) are informed about  the executions in advance. Tens of prisoners, among them a possible minor, executed on February 10 and 13 Reliable reports from Vakilabad prison indicate that the mass executions are still taking place.  IHR has now received more details about the mass executions which occurred on Sunday,  February 10 and Wednesday, February 13. According to these reports, at least ten prisoners  were executed on February 10, while the number of prisoners executed on Wednesday February  13 was much higher. Most of those executed were convicted of drug related charges. However,  a possible minor offender was among those executed on February 13: a young boy who had just  turned eighteen and was convicted of murder. According to our sources, the boy was allegedly a  minor and under narcotic-induced psychosis when he committed the offence. Many Afghan citizens among those executed: IHR has also received reports about a significant number of Afghan prisoners among those executed  in the Vakilabad prison in the past few months. The bodies of the executed Afghan prisoners, which  were not transferred to Afghanistan, are buried at a section of the Mashhad Cemetery (Behesht-e-Reza)  along with the bodies of the other prisoners executed secretly in Vakilabad. This part of the cemetery  is monitored by cameras and patrolled by the Iranian security forces. A recent report from BBC Persian  supports IHR’s reports on execution of Afghans in Vakilabad. On February 23, BBC Persian reported  that bodies of five Afghan prisoners, who were executed in Iran, were buried in the Kalafgan district of  Takhar Province in Afghanistan. Quoting the families of those executed, the report says that about 80  people from this district have been executed in the last six months in Iran. The report said that 50 bodies  were trensferred to Afghanistan while the remining bodies are being kept at cold rooms in Iran. United Nations must intervene Based on the new information about the mass executions in Vakilabad, IHR has sent an urgent appeal to  the United Nations (UN) to send a fact finding mission to Iran. IHR spokesperson Mahmood Amiry- Moghaddam said: “What is going on in Vakilabad is a massacre. These are arbitrary and unlawful mass  executions that must be stopped[…] We urge the UN to send a fact finding commission to Iran immediately  and we ask the international community to react. Hundreds or possibly thousands of the prisoners can be  executed in the coming months.” Amiry-Moghaddam also urged the Afghan government to follow up the  situation of its imprisoned citizens in Iran more closely, saying, “Afghan citizens are among the weakest in the  Iranian society. Many of those imprisoned do not have access to lawyers and their execution is violation  of international obligations. Unfortunately, the Afghan government doesn’t seem to pay much attention to  its imprisoned citizens in Iran.” — Overfilled prisons Iranian authorities’ motivation for the mass executions? According to unconfirmed reports, there could be as many as 3,000 death row prisoners in Vakilabad in  danger of execution in the coming months. IHR believes that secret executions also take place in other  Iranian prisoners. In its annual report from 2011, IHR reported confirmed secret executions in fifteen  different Iranian prisoners. One of the reasons for the secret mass executions in Vakilabad and other  Iranian prisons is that the prisons are overfilled. According to official Iranian reports, there are 600,000  prisoners in the Iranian prisons. IHR’s sources estimate that there are 20,000 prisoners in Vakilabad,  though the prison only has the capacity to house 4,000 inmates. According to eyewitnesses, in some of  the wards the prisoners have to sleep on the steps and in the corridors. The situation is similar in several  other Iranian prisons, and it seems that mass execution of the death row prisoners is one of the solutions  Iranian authorities have sought to overcrowded prisons in Iran. Human rights groups published the first reports on secret executions in Vakilabad prison in 2010.  According to the estimates at least 500 prisoners were executed in 2010-2011. Names of more than  100 executed prisoners were published in 2011. The executions halted in 2011 due to international attention.  However, the executions have resumed and according to IHR’s conservative estimates that about 500 prisoners  are executed in this prison since October 2012.

One Young Man Hanged Publicly In Central Iran

One Young Man Hanged Publicly In Central Iran- Four More To Be Hanged Publicly Soon

, February 20: One prisoner was hanged publicly in Arak (central Iran) today Wednesday February 20. According to the official website of the Iranian judiciary in Markazi Province the prisoner was a 23 year old man convicted of kidnapping and sexual abuse of a 15 year old boy. the prisoner was not identified by name. The state run Iranian media also reported that four young men convicted of raping a young girl will be hanged publicly in Karaj (west of Tehran) in the near future. Number of public executions and other public punishments such as lashing and amputations have increased significantly in the past few months in Iran and Iran Human Rights (IHR) believes that the number will increase as we approach the June 2013 Presidential elections. Number of public executions in the first 7 weeks of 2013 are as high as the whole year 2010.

8 prisoners hanged in Shiraz

Executions one day before scheduled date: 8 prisoners among them one woman hanged in Shiraz Today

Tuesday 19 February 2013

[English] [فارسى]

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Iran Human Rights, February 19: Eight prisoners were hanged in Shiraz’s Adelabad Prison early this morning. According to the official website of the Iranian judiciary in the province of Fars, eight prisoners, among them one woman, were hanged this morning. The prisoners were all convicted of drug-related charges, said the report.
The prisoners were identified as "Lotfollah J.", "Noor Mohammad Sh.", "Abbas N.", "Hossein A.", "Parinaz M." (woman), "Hamid A.", "Abdolvahed M." and "Ali T."
According to sources in Iran, families of the prisoners were informed that the executions would be carried out on February 20, but Iranian authorities carried out the executions one day earlier without notice.
Iran Human Rights (IHR) had issued an urgent action about the scheduled execution of 12 prisoners in Shiraz. There is no information currently available on the location or condition of the remaining four prisoners. They could be executed tomorrow or in the coming days.
IHR strongly condemns today’s executions in Shiraz. Mahmood Amiry-Moghaddam, the spokesperson of IHR, said: "The international community must condemn the execution wave in Iran. Iranian authorities execute more than one person every day without being faced with appropriate international reactions."

Seven Executions In Iran

Seven Executions In Iran: Four Executions In Public

Iran Human Rights, February 17: Seven prisoners were hanged in the cities of Arak and Shiraz according to the official Iranian sources.
Three prisoners hanged in Arak (Central Iran):
According to the official Iranian news agency IRNA three prisoners were hanged in the prison of Arak early Sunday morning February 17. The prisoners were identified as "A.B." (31) convicted of buying and possession of 1370 grams of Shisheh, "M. S." (26) convicted of possession of 1500 grams of heroin, and "A. F." (47) convicted of possession of 1382 grams of opium, 450 grams of shisheh and 390 grams of heroin, said the report.
Four prisoners were hanged in public in Shiraz (Southern Iran):
One prisoner was hanged yesterday and three prisoners were hanged in of Shiraz. All the executions were carried out in public. One prisoner was hanged publicly in the Gaz Square of Shiraz yesterday morning, reported the official website of the Iranian judiciary in Fars Province. The prisoner was identified as "A. B." (29) and was convicted of kidnapping and rape. The same website reported that three other prisoners were hanged publicly in the Sadra city of Shiraz Sunday morning (today). The prisoners were identified as "H.A.", "Y. F." and "M. V." and were convicted of kidnapping and sodomy rape of a young boy, said the report. Age of the prisoners was not mentioned in the report.
Besides the officially announced executions, the rights group HRDAI reported that at least four prisoners were hanged in the prison of zahedan. Iranian authorities haven’t confirmed these executions yet.

Seven Executions In Iran

Seven Executions In Iran: Four Executions In Public

http://iranhr.net/spip.php?article2717

Iran Human Rights, February 17: Seven prisoners were hanged in the cities of Arak and Shiraz according to the official Iranian sources.
Three prisoners hanged in Arak (Central Iran):
According to the official Iranian news agency IRNA three prisoners were hanged in the prison of Arak early Sunday morning February 17. The prisoners were identified as "A.B." (31) convicted of buying and possession of 1370 grams of Shisheh, "M. S." (26) convicted of possession of 1500 grams of heroin, and "A. F." (47) convicted of possession of 1382 grams of opium, 450 grams of shisheh and 390 grams of heroin, said the report.
Four prisoners were hanged in public in Shiraz (Southern Iran):
One prisoner was hanged yesterday and three prisoners were hanged in of Shiraz. All the executions were carried out in public. One prisoner was hanged publicly in the Gaz Square of Shiraz yesterday morning, reported the official website of the Iranian judiciary in Fars Province. The prisoner was identified as "A. B." (29) and was convicted of kidnapping and rape. The same website reported that three other prisoners were hanged publicly in the Sadra city of Shiraz Sunday morning (today). The prisoners were identified as "H.A.", "Y. F." and "M. V." and were convicted of kidnapping and sodomy rape of a young boy, said the report. Age of the prisoners was not mentioned in the report.
Besides the officially announced executions, the rights group HRDAI reported that at least four prisoners were hanged in the prison of zahedan. Iranian authorities haven’t confirmed these executions yet.

Seven Executions In Iran

Seven Executions In Iran: Four Executions In Public

Iran Human Rights, February 17: Seven prisoners were hanged in the cities of Arak and Shiraz according to the official Iranian sources.
Three prisoners hanged in Arak (Central Iran):
According to the official Iranian news agency IRNA three prisoners were hanged in the prison of Arak early Sunday morning February 17. The prisoners were identified as "A.B." (31) convicted of buying and possession of 1370 grams of Shisheh, "M. S." (26) convicted of possession of 1500 grams of heroin, and "A. F." (47) convicted of possession of 1382 grams of opium, 450 grams of shisheh and 390 grams of heroin, said the report.
Four prisoners were hanged in public in Shiraz (Southern Iran):
One prisoner was hanged yesterday and three prisoners were hanged in of Shiraz. All the executions were carried out in public. One prisoner was hanged publicly in the Gaz Square of Shiraz yesterday morning, reported the official website of the Iranian judiciary in Fars Province. The prisoner was identified as "A. B." (29) and was convicted of kidnapping and rape. The same website reported that three other prisoners were hanged publicly in the Sadra city of Shiraz Sunday morning (today). The prisoners were identified as "H.A.", "Y. F." and "M. V." and were convicted of kidnapping and sodomy rape of a young boy, said the report. Age of the prisoners was not mentioned in the report.
Besides the officially announced executions, the rights group HRDAI reported that at least four prisoners were hanged in the prison of zahedan. Iranian authorities haven’t confirmed these executions yet.

Constitutions 

Criminal Law

The body of law dealing with wrongs that are punishable by the state with the object of deterrence is known as criminal law. Islamic criminal law recognizes three categories of these wrongs. The first is the ḥudūd (plural of ḥadd, a “limit” set by God), the contravention of which leads to a prescribed and mandatory penalty. The second, taʿzīr (chastisement), comprises those crimes not included among the ḥudūd because their punishment is discretionary. Taʿzīr implies the correction or rehabilitation of the culprit; hence, punishment is left to the judge and might vary depending upon who inflicts it and upon whom it is inflicted. The third category, qiṣāṣ (retribution), is concerned with crimes against the person such as homicide, infliction of wounds, and battery. Punishment by retribution is set by law, but the victim or his next of kin may waive such retribution by accepting blood money or financial compensation (diyah) or by forgoing the right altogether. Because of this waiver, it has been suggested that this crime is in the nature of a private injury, more akin to a tort than to a crime involving a public interest or concern.

Jurists have accorded ḥudūd much attention because they are grounded in the Qurʿān and theḥadīth, as is qiṣāṣ. Taʿzīr, however, because of its discretionary nature, has escaped precise definitions and detailed treatments of the elements of the crimes that it encompasses. It might be said, though, that all acts that violate private or community interests of a public nature are subject totaʿzīr; it was left to public authorities to establish rules, within the spirit of the sharīʿah, to punish such acts.

Taʿzīr comprised essentially two categories of crimes. The first consisted of those crimes that did not meet the strict requirements of ḥudūd crimes (although they were of the same nature) or those individual crimes that were included in ḥudūd. Examples of the former are thefts among relatives or thefts of things below a minimum value for a ḥadd punishment: attempted robbery, attempted fornication, and lesbian contacts. Examples of the latter type are breach of trust by a testamentary guardian, false testimony, and usury. The second category included those acts that generally caused damage to the public order or public interest or threatened to cause such damage. In the nature of things, the second category, if not kept in check, could result in precautionary measures that might compromise individual rights; therefore, a balance had to be maintained between public order and individual rights. Punishment for taʿzīr could range from the (exceptional) death penalty for espionage and heresy, to whipping, imprisonment, local banishment, and fines for a variety of crimes. Jurists were careful, though, to limit whipping to a level below that ordered for ḥudūd punishments.

Qiṣāṣ (talion) encompassed five crimes: murder or intentional killing, quasi-intentional killing or voluntary manslaughter (as when a person intends only to beat another but in doing so kills him), involuntary killing, intentional physical injury, and unintentional physical injury. Talion (retaliation) was allowed only in instances of intentional killing and intentional physical injury; even here retribution could be waived by the victim or his family, and monetary compensation (diyah) could be exacted instead. For other qiṣāṣ crimes only monetary compensation was exacted. The diyah for killing was set by most jurists at one hundred camels or one thousand gold dinars; the diyah for physical injuries varied according to the nature of the injury. The law of qiṣāṣ was an exception to the principle of individual responsibility for crimes emphasized by Islamic law, because it made the perpetrator 's clan (ʿāqilah) responsible with him for payment of the diyah; correspondingly, the clan of the victim divided up the diyah payable for his death in keeping with the legal maxim that liability is proportional to the benefit. In later years when Arabs settled in military camps outside Arabia (amṣār), the ʿāqilahbecame the military unit (dīwān) to which the killer or the victim belonged.

In theory all these offenses were to be tried by the qāḍī, the sharīʿah judge. Law books throughout the centuries repeated this theoretical jurisdiction of the qāḍī, including the administration of criminal law. But in fact the qāḍī must have lost criminal jurisdiction very early in the Islamic centuries. The reasons are several: first, the sharīʿah dealt with only a limited number of crimes and their penalties, leaving a host of others ill-defined and lumped under taʿzīr; second, the law of evidence in thesharīʿah, with its dependence only on trustworthy witnesses (ʿudūl) and admissions, and its rejection of circumstantial evidence, was too restrictive to allow for an efficient criminal system; finally, rulers of Islamic empires and states could not leave matters of crime affecting state security in the hands of religious authorities who were loyal to a body of laws over which the state had no control. All these factors gave rise to criminal jurisdictions independent of that of the qāḍī, although the latter continued to be involved in matters involving homicide and diyah, which assumed the character of a tort or a civil claim. As a result the shurṭah (police) assumed the duty of investigating, prosecuting, and sentencing for most crimes with no distinction between one function and the other. The muḥtasib(inspector of the marketplace) punished those trade infractions and offenses against morals that were apparent and did not require testimony before a qāḍī 's court. In addition, beginning in the early years of the ʿAbbāsid regime in the latter part of the eighth century, a new jurisdiction, called maẓālim(court of grievances) headed by the ruler, vizier, or governor, undertook to repress wrongdoers whom other courts could not control and generally to restrain oppression by officials. None of these jurisdictions was limited by the sharīʿah, as the qāḍī was. They applied mainly to customary law (ʿurf) or what political expediency (siyāsah) required; punishments were often arbitrary and severe.

The Ottoman sultans who inherited this system attempted to limit the arbitrary punishments meted out by these extra-sharīʿah jurisdictions by issuing regulations (qānūn, modern Turkish kanun) for secular criminal provisions and procedures. Yet a qānūnnāme (modern Turkish kanunname), or basic law, issued in 1525 for Egypt, a few years after its conquest, seems to indicate that the purpose was to give leeway to non-sharīʿah judges to inflict heavy punishments for disputes and feuds thatqāḍīs could not suppress.

498 to 522 panel code

Article 498

Anyone with any inclination who forms or administers a faction, association or branch of an association of more than two people in or outside the country under any name or title with the intention of disrupting the country's security, in case he is not considered as Mohareb, shall be sentenced to a term of two to ten years in prison.

Article 499

Anyone who enters into membership with one of the factions or associations or the branches of associations mentioned in Article 498 above, shall be sentenced to an imprisonment of three to five years unless it is proved that the perpetrator has had no knowledge about the intentions of the said groups.

Article 500

Anyone who, in any manner, makes propaganda activity against the system of the Islamic Republic of Iran or in favor of groups and organizations opposed to the system shall be sentenced to an imprisonment of three months to one full year.

Article 501

Anyone who intentionally and knowingly gives drawings, secrets or documents and decisions pertaining to domestic and foreign policies of the country to persons not competent of having knowledge thereof or informs them of the contents of such drawings, secrets and documents which involves a part of espionage, shall be sentenced to an imprisonment of one to ten years with regard to the nature of the crime.

Article 502

Anyone who carries out one of the espionage crimes in favor of an alien government and against another alien government in the territory of Iran which damages the country's national security, shall be sentenced to an imprisonment of one to five years.

Article 503

Anyone who, for the purpose of stealing or taking away of plans or acquiring of information regarding political, military or security secrets, enters the relevant positions as well as persons arrested when making a drawing or taking a picture or filming of military strongholds or forbidden locations without the permission of the competent authorities or officials shall be sentenced to an imprisonment of six months to three years.

Article 504

Anyone who effectively incites combatant forces or persons who, in a way or another, are at the service of the armed forces to mutiny, escape, surrender or decline to enforce military duties with the intention of overthrow of the government or defeat of own forces in the face of the enemy, shall be considered as Mohareb, or else if his actions are effective, he shall be sentenced to an imprisonment of two to ten years, and otherwise, he shall be sentenced to an imprisonment of six months to three years.

Article 505

Anyone who, with the intention of disrupting the country's security, collects, through any means, classified information under the cover of the country's authorities or government officers or other methods as an attempt to put these information at the disposal of others and succeeds in doing so, shall be sentenced to an imprisonment of one to five years.

Article 506

Should government officers in charge of safeguarding and protecting classified information, who have undergone the necessary training, are debriefed by enemies due to carelessness and failure to observe the principles regarding safeguarding of information, shall be sentenced to an imprisonment of one to six months.

Article 507

Anyone being a member of Mofsedin (mischief-makers) or groups carrying out actions against the country's internal or external security without having an occupation or chairmanship in such groups and informs government officers, before being prosecuted, of intentions for crime and the name of persons involved in the crime, or effectively cooperates with government officers after his prosecution is commenced, shall be exempted from punishment. However, if he has personally committed some other crimes, he shall only be given punishment for such crimes.

Article 508

Anyone or any group cooperating with hostile alien governments in any manner against the Islamic Republic of Iran, and who may not be considered as Mohareb, shall be sentenced to an imprisonment of one to ten years.

Article 509

Anyone who, in time of war, commits one of the crimes against the internal and external security subject of this section shall be sentenced to the maximum punishments set for such crime.

Article 510

Anyone who, with the intention of disrupting the national security or helping the enemy, finds out and hides spies who had been assigned to carry out inspections or inflict any kind of damages to the country or causes them to be hidden, shall be sentenced to an imprisonment of six months to three years.

Note: Anyone who does not carry out espionage or does not hide spies but finds out, in any way, individuals and employs them and introduces them to a hostile government or alien governments for the purpose of spying against the country's security shall be sentenced to an imprisonment of six months to two years.

Article 511

Anyone who, for the purpose of disrupting the country's security and inciting the public opinion, threatens to plant bomb in planes, ships and public transportation vehicles or claims that bomb has been planted in the said planes, ships and vehicles, in addition to paying compensation for the damages incurred to the government and individuals, shall be sentenced to an imprisonment of six months to two years.

Article 512

Anyone who tempts or incites people to fighting and killing of each other for the purpose of disrupting the country's security, irrespective of whether these actions lead to killing or causes plunder and pillage or not, shall be sentenced to an imprisonment of one to five years.

Note: Punishments set forth in Articles 508, 509 and 512 above shall not include persons who, before arrest, have repented.

Section Two - On Sacrilege of Islamic Sanctities and Attempting the Life of Iranian Authorities

Article 513

Anyone insulting the sanctities of Islam and/or any of the great prophets or the innocent ones or Fatemah (PBUH) (daughter of holy prophet Mohammad) shall be executed in case the ruling for the holy prophet includes him. Otherwise, he shall be sentenced to an imprisonment of one to five years.

Article 514

Anyone insulting in any way, the Founder of the Islamic Republic of Iran the late Imam Khomeini (peace be upon him) and the revered Leader shall be sentenced to a term of six months to two years in prison.

Article 515

Anyone attempting on the life of the Leader or any of the heads of the three powers (President, Parliamentary (Majlis) Speaker and Head of Judiciary) and the great Marje-e-Taqlid (supreme religious authorities whose rulings Shiite Muslims are obliged to follow) shall be sentenced, in case he is not considered as Mohareb, to an imprisonment of three to ten years.

Section Three - On Attempting the Life of Foreign Political Authorities

Article 516

Anyone attempting the life of a foreign head of state or the diplomatic representative of a foreign country in the territory of Iran shall be sentenced to the punishment set forth in Article 515 above provided that the same procedure shall be enforced reciprocally in the country involved. And if light punishment is enforced, the culprit shall be equally punished accordingly.

Note: In case the attempt leads to death, injury or bruises, the culprit, in addition to the punishment set forth above, shall be sentenced to Qassas (retaliation) or payment of blood money in accordance with the relevant rules and regulations.

Article 517

Anyone insulting openly the head of or the diplomatic representative of a foreign country in the territory of Iran shall be sentenced to an imprisonment of one to three months provided that the same procedure is enforced reciprocally in the country involved.

Note: Enforcement of the Articles set forth in this Section shall be subject to the request of the related foreign government or its diplomatic representative or demand of the person who has been insulted or his guardian, Criminal prosecution will be stopped in case of withdrawal of the request.

Section Four - On Making and Circulating Counterfeit Coins

Article 518

Anyone who makes the imitation of any types of domestic or foreign gold or silver coins such as Bahar-e-Azadi (Spring of Freedom), the coins of former governments of Iran, pounds and the like which are in currency or imports such coins into the country knowingly, or purchases and sells such coins, or circulates counterfeit coins, shall be sentenced to an imprisonment of one to ten years.

Article 519

Anyone who for illegitimate purposes, cuts down the weight, in any manner, of Iranian or foreign gold or silver coins by cutting, carving, etc. or knowingly and intentionally takes part in circulation of such coins or importing the same into the country, shall be sentenced to an imprisonment of one to three years.

Article 520

Anyone who makes the imitation of domestic or foreign non-gold and non-silver coins in currency, or knowingly and intentionally takes part in their circulation or importing them into the country or buys and sells such coins, shall be sentenced to an imprisonment of one to three years.

Article 521

Where persons committing the crimes described in Articles 518, 519 and 520 disclose the cases of the crime to prosecutors before discovery thereof, or facilitate prosecution of the other parties by their confessions during prosecution, or provide effective help and guide the government agents into discovering the crime, the punishment of such persons shall be either mitigated or they will be exempted from imprisonment as the case may be at the proposal of the relevant prosecutor and approval of the court and/or at the discretion of the court. If it is proved that such persons had repented before arrest, they shall be exempted from all of the said punishments.

Article 522

In addition to the punishments set forth in Articles 518, 519 and 520 all the property gained through such actions shall be confiscated as Ta'azir in favor of the government.

CIVIL CODE

Preamble On the publication
Effects and Execution of Laws in General
Article 1 The Islamic Consultative Assembly’s enactments and the results of the
referendum, having gone through legal procedures will be notified to the president of the
Republic. The President shall within five days sign them and notify them to executors,
and issue instruction to have them published, and the Official Gazette shall be required
to publish them within 72 hours after notification thereof.
Note: In case of the President’s refusal to sign or notify an enactment within the time
period referred to in this Article, the Official Gazette shall be required to publish it within
72 hours on the order of the Chairman of the Islamic Consultative Assembly.

Article 2 The legislative enactments come into force throughout (lie country fifteen days after their publication, unless a specific arrangement has been prescribed in the
given legislation itself to the timing of its enforcement

Article 3 The text of laws must be published in the Official Gazette

Article 4 A law shall be effective only as from the date of its coming into force, and
shall not be retrospective unless special provisions to this effect have been laid down in its text
Article 5 All inhabitants of Iran, whether of Iranian or of foreign nationality, shall he
subject to the laws of Iran except in cases which the law has excepted.
Article 6 The laws relating to personal status, such as marriage, divorce, capacity and inheritance, shall he observed by all Iranian subjects, even if resident abroad.
Article 7 Foreign nationals resident territory shall within the limits laid down by treaties, be bound by the laws and decrees of the Government to which they are subject in questions relating to their personal status and capacity. and similarly in questions relating to rights of inheritance
Article 8 Immovable property, of which foreign nationals have taken possession or shall take possession under the terms treaties, shall in every respect come within the scope of the laws of Iran.
Article 9 Treaty stipulations which have been, in accordance with the Constitutional Law, concluded between the Iranian Government and other government, shall have the force of law.
Article 10 Private contracts shall be binding on those who have signed them, providing they are not contrary to the explicit Provisions of a law.2
 Concerning Property

Provisions Concerning Ownership ///   In Definition of The Various kinds of Property

Article 11 Property is of two kinds, movable and immovable.

Concerning Immovable Property

Article 12 Immovable property is that which cannot be transported from place to place either because it is the nature of the thing to be fixed in one place or because, as the result of human action, the damage or injury either to the property itself or its emplacement.

Article 13 Land and buildings and mills and everything which is fixed in a building and is by common use considered apart of it are immovable, and similarly pipes which have been laid under the ground or in a building for carrying water or for other purposes are to be accounted immovable.

Article 14 Mirrors, Painted curtains, statues and similar objects, in so far as they are attached to the ground or to a building in such a way that their removal would cause injury or damage to their emplacements, are considered immovable.

Article 15 Fruits and crops shall be deemed immovable that they have not been picked or reaped, and if a portion shall have been picked or reaped , only that portion shall be accounted movable.

Article 16 In general, trees and branches thereof, young plants and cuttings, as long as they have not been cut or dug, be considered immovable

Article 17 Animalsand the equipment which the owner shall have provided specifically for cultivation  such as oxen, buffaloes, machines, implements and appurtenances of husbandry, seeds etc and in general all movable goods which are necessary for theprosecution of farming operations and have been devoted by the owner exclusively to this purpose shall, for purposes of competency of courts and of attachment of property, be considered as forming part of the landed property and shall be treated as immovable
property, as also shall pumps, oxen and other animals, appropriated for the irrigation of fields, houses and gardens.

Article 18 Rights benefits from immovable objects such as a life interest, the right of residence and similarly the rights of easements over the land of another. Such as the rights of passages and of transit of water and the claims related to immovable property such as demands for eviction and similar applications, shall follow the rules concerning immovable property.3

Concerning Movable Property

Article 19 Articles which it is possible to transport from place, without causing damage either to the articles themselves or to their emplacements, are considered movable.

Article 20 All
debts arising out of loans, or the price of things sold, or the rent of things
leased shall, for purposes of competency of courts, be considered movable, even if the
thing sold or rented is itself immovable

Article 21 Ships, large and small, boats, mills, and bathhouses, plying on or situated rivers or seas, and capable of movement and a II work places which, in view of the manner of their construction do not form part of a permanent building, shall be accounted movable, but the attachment of certain of the above mentioned may, in view of their importance, be carried out in accordance with special arrangements

Article 22 Building materials such as stone, bricks, etc. which have been prepared for use or because of some defect have become separated from the building, so long as they have not been embodied in the building, shall be considered movable.


Concerning Property Which Has No Private Owner

Article 23 The use of a property which has no private owner shall be determined in accordance with the relevant laws.
Article 24 No one shall take possession of common roads and highways, nor of streets which have no thoroughfare.
Article 25 No one may take possession of property which serves the common good and which has no private owner, such as bridges, caravanserai's  pubic reservoirs, ancient schools and public open places. And the same applies to the qanat and wells of which their use is public.

Article 26 Government
property which is subject to public service and welfare such as
fortifications, fortresses, moats, military earthworks, arsenals, weapons, stores, warships
and similarly the furniture and buildings of the Government buildings and telegraph
wires, museums, public libraries, historical monuments and similar objects, in brief
whatever property movable or immovable is in use by the Government for the service of
the .public or the profit of the state, may not privately be owned. And the same
provisions
shall apply to property which shall have been appropriated for the public service of a
province, city or a region or a town.

Article 27 The properties which are not privately owned and which private individuals, in accordance with the regulations contained in this law and the especial laws dealing with each particular category, are allowed to take into their possession and exploit, shall be termed “mobahat” and under this heading shall come waste lands, that is to say, lands which have fallen into disuse and on which are neither habitations nor cultivation.

Article 28 Property of unknown ownership shall be the needs of the poor, subject to the judge’s permission or that of a person authorized by him.

CONCERNING THE VARIOUS RIGHTS WHICH ACCRUE
TO PERSONS FROM THE POSSESSION OF PROPERTY

Article 29 It is possible for people to derive the following rights from property:

1 The right of possession (whether of the substance of the thing of its benefits).
2 The right of exploitation.
3 Rights easement in the property of another.


Concerning Ownership

Article 30 Every
owner has unlimited rights of Occupation and exploitation over his
property in matters in which the law has made an exception
Article 31 No
property can be alienated from the possession its owner except in
accordance with a legal order.
Article 32 All
products and appurtenances of the property whether movable or
immovable produced naturally or as the result of exploitation are the property of the
owner.
Article 33 Products
and crops which have come out of the ground are the property of
the owner of the land, whether their growth is natural or the result of the owner’s
operations, unless the product or crop has sprung from the roots or seeds of another
party.
if this is the case the trees or crops shall be the property of the owner of the roots or
seeds, even if they have been sown without the approval of the owner of the land
Article 34The
progeny of animals shall be of the same owner ship the mother, and
whoever is the owner of the mother shall he considered the owner of the offspring.
Article 35 Possession
by title of ownership shall be taken as proof of ownership unless
the contrary proved.
Article 37 if
the present occupier admits that the property formerly belonged to the
claimant, he can not urge, in refutation of the other’s claim, his own occupation of the
property, unless he can prove that the property has been transferred to him according to
the correct procedure
Article 38 The
ownership of ground carries with it the owner ship of the air immediately
above it up to any height, and the same applies to the area under the ground; in brief,
the
owner has unlimited rights of possession in the air and the ground, unless the law shall
have made provisions to the contrary.
5
Article 39 All
buildings and trees above the ground and all buildings and excavations
beneath the ground shall be considered the property of the owner of the ground unless
the
contrary be proved.
Section 2
Concerning the Right of Exploitation
Article 40 The
right of exploitation comprises the right by which a person may derive
profit from property which either belongs in proprietary right to someone else or has no
special owner.
Subsection 1
Concerning Life Rights
for a Prescribed Period and
Rights of Occupation
Article 41A
Life Right
is a right of exploitation which has been established by means
of a contract entered into by the owner in favour of someone, either for his own lifetime
or for the lifetime of the user or for that of a third party.
Article 42Aright
for a prescribed period is a right of exploitation which the owner
grants for a limited time.
Article 43 If
the right of exploitation includes the right of occupying a habitation, it is
termed residential or the right of habitation and it is permissible for this right to be
assigned as life right
or as a right for a limited period
Article 44 In
cases where the owner has not prescribed a time limit
for the right of
exploitation, the surrender is absolute, and the said right shall run until the death of the
owner unless he revokes the surrender before his death.
Article 45 in
the above mentioned cases it is only permissible for the right of
exploitation to be granted to a person or persons who were alive at the time of creation
of
the said right , but it is also possible for the right of exploitation to follow on in
succession for persons who were not alive at the time of the conclusion of the contract,
and as long as the owners of the right of exploitation are alive it shall be valid; and after
their decease it shall lapse.
Article 46 It
is only possible for a right of exploitation to be granted in respect of
property which is such that it can be used without affecting its own existence, whether
the
said property is movable, immovable held in undivided shares or divided up.
Article 47 In
the case of surrendered property, whether held as a life right
or not,
taking delivery is the legal requirement for ma king the transaction valid.
Article 48 The
user must not misuse the property to which the right of exploitation
applies and, being in custody of it, must not allow excessive use or negligence6
Article 49The
expenses necessary for the upkeep of the property which is subject to
the
right of exploitation is not an obligation on the user, unless a provision to the contrary
has
been agreed upon.
Article 50 If
the property which is subject to the right of exploitation becomes
dissipated for any reason other than excessive use or negligence on part of the user ,
the
latter shall not be held responsible
Article 51 In
the following cases the right of exploitation lapses:
In
the event of the time limit
expiring.
2 In
the event of the property which is the object of the right of ex being destroyed.
Article 52 In
the following cases the user is a guarantor for the losses of the owner
In
the event of the owner misusing the property which is the object of the right of
exploitation.
2 In
the event of his not observing the conditions laid down by the owner and of such
non observance
being the cause of damage to the object of the right.
Article 53 The
transfer of the substance of the property by the owner to another party
shall not nullify the right of exploitation, but if the person to whom the property is
transferred does not know that the right of exploitation has been granted to another party
he shall have the option of dissolving the contract.
Article 54 The
rest of the circumstances concerning the exploitation of the property of
another shall be as laid down by the owner or demanded by custom and usage.
Subsection 2
Concerning Endowment
Article 55An
Endowment consists in the surrender of a property, and the devotion of its
profits to some purpose.
Article 56An
endowment takes place when the donor makes an offer by any form of
words which definitely carry this meaning and when the first generation of beneficiaries,
or their legal representative if they are limited in number, as in the case of children,
accept it or if the beneficiaries are unlimited in number or the endowment be made for
the
benefit of the public, then the acceptance of the judge is required.
Article 57The
donor must be the owner of the property to be endowed and, in addition,
must be possessed of capacity to contract and to make valid transactions.
Article 58It
is permissible to endow only such property as can be exploited without
detriment to its existence, whether it be movable, held in undivided shares or divided up.
Article 59 If
the donor does not hand the substance of the endowment over to the
possession of the foundation to which it has been bequeathed, the endowment is not yet
complete, but once it has been delivered the endowment is authentic.
7
Article 60In
respect delivery, urgency is not essential; so long as the donor has not
revoked endowment whenever is given the endowment becomes final
Article 61When
the endowment takes place in the proper form and is delivered, it is
binding, and the donor is not permitted revoke it nor to make any alterations in it, nor ma
he expel any one of the beneficiaries, nor make any new beneficiaries; nor, if in the text
of agreement the administrator is not specified, may he appoint an administrator, nor
may
he interfere in the capacity of administrator.
Article 62In
the event of the beneficiaries being limited in number they themselves shall
take delivery, and delivery to the first generation shall be sufficient; and if the
beneficiaries are unlimited or the bequest is to be devoted to the public use, either the
administrator or the judge shall take delivery.
Article 63The
guardian and executor of persons who are under disability will take
delivery of the endowed property on their behalf and if the donor has reserved the office
of administrator to himself, then the fact of his taking delivery shall suffice.
Article 64Property
of which the profits are temporarily granted to another party can be
the object of an endowment, and similarly it is permissible to endow landed property to
which a right of easement is attached, without prejudicing the said right.
Article 65The
validity of an endowment which may result the detriment of the donor’s
creditors, is dependent on the permission of the creditors
Article 66An
endowment for an unlawful purpose is null and void. Article
67The
endowment of property of which it is not possible to give and take delivery is
null and void, but if the donor alone is not capable of taking and giving delivery, then
such an endowment is valid.
Article 68Anything
which, either by nature or in accordance with usage and custom is
reckoned as forming part of the dependencies and appurtenances of the endowed
property, is in the endowment, unless the donor has made special provision to the
contrary, in the sense mentioned in the Chapter Concerning Sales.
Article 69An
endowment for the benefit of non existent
persons is invalid, unless it
follows in succession from living beneficiaries.
Article 70If
an endowment is made jointly to persons who do not exist and to persons
living, it is valid in so far as it concerns the living and null and void in so far as it
concerns those who do not exist
Article 71Endowments
to persons unknown have no validity.
Article 72An
endowment for the benefit of the donor himself in such a way that the
donor makes himself the sole beneficiary or one of the beneficiaries or provides for the
payment of his debts or other obligations out of the profits of the endowed is null and
void, whether it’ is concerned with his life time or with the period after his decease
Article 73Endowments
to children, relatives, servants or guests and so on, are valid.
Article 74In
the case of an endowment for the public use, if the donor also becomes
entitled to benefit under the endowment he is permitted to benefit.
8
Article 75The
donor may reserve to himself the administration, that is to say, the
management of the affairs of the property, either for his lifetime or for some specified
period, and also may appoint as administrator some other person who either
independently or in conjunction with the donor, shall administer the property. The
administration of the endowed property may be handed over to one or more persons
other
than the donor who will carry out the administration either individually or jointly, and
similarly the donor may lay down the condition that he himself or the administrator
appointed, may arrange for an administrator , or may make provision for any
arrangements to that effect which he deems fit.
Article 76Any
one whom the donor has designated as administrator has the option, in
the
first instance, of accepting or refusing the trusteeship; once he has accepted he cannot
withdraw; and, once he has refused, it is as if he had never been designated as
administrator
Article 77In
any case in which the donor has vested the administration in two or more
persons independently, when one of them deceases, the other or others take
possession
individually and if it be laid down that such taking possession shall be collective, then an
act of taking possession on the part of anyone of the administrators shall not be valid
unless it has the approval of the other or others, and after the death of one of them the
judge shall appoint a person to be added to the survivors in order that they may jointly
enter into possession.
Article 78The
donor may appoint a supervising trustee without whose knowledge and
approval no administrative act may take place
Article 79 Neither
the donor nor the judge can remove an administrator who has been
specifically appointed in the deed of endowment, unless such a right shall have been
provide for, and if the administrator be shown to he dishonest, the judge shall coopt
a
trustee.
Article 80If
the donor has made a special provision concerning the qualifications of the
administrator, and the administrator loses those qualifications, he ceases to act as an
administrator.
Article 81In
the case of endowment to the public, if the donor has not appointed an
administrator, the management of the affairs of the endowed property shall be carried in
accordance with the views of “WaliyeFaqih”.
Article 82In
all cases in which the donor has made special arrangements of the estate,
the administrator shall carry out these arrangements, and if no arrangement are laid
down,
he shall act with regard to repairs, leases and the collection of profits and their division
among the beneficiaries and the maintenance of the property and so on, like a
trustworthy
agent.
Article 83The
administrator may not entrust the administration to another unless the
donor has given permission in the text of the deed of endowment, but if in the deed of
endowment it is not stipulated that he shall personally administer the property, he may
appoint an agent.
9
Article 84It
is permissible for the donor to make provision for a portion of the profits of
the estates to be devoted to the remuneration of the administrator, and info
remuneration
for the administrator has been specified the administrator is entitled to a fair
remuneration
Article 85After
the profits of the estate have been realized and apportioned, each of the
beneficiaries specified may take possession of the portion, even if the administrator
withholds permission, unless the donor has made such permission a condition of
possession.
Article 86Should
the donor not have made special provision, the expenses for upkeep
and repairs and for the operations necessary for the exploitation of the estate shall be
prior charge before the rights of the beneficiaries.
Article 87The
donor may lay down that the profits of the estate be divided between the
beneficiaries equally or unequally, to that the division shall be made at the discretion of
the administrator or of some other person to divide the profits as he thinks best.
Article 88The
sale of the estate in the event of its suffering damage, or of fears being
entertained that damage will be incurred of such a kind as to render it incapable of
exploitation, is permissible, provided that the maintenance of it is impossible, or that no
one can be found to undertake it.
Article 89Whenever
part of an estate becomes damaged or liable to damage in such a
way that exploitation is rendered impossible, that portion shall be sold, unless the
damage
to that portion is detrimental to the exploitation of the remainder, in which case the whole
estate shall be sold.
Article 90An
endowment which is allowed to be sold shall be converted into an estate
which is as near as possible to the intentions of the donor.
Article 91In
the following cases the profits of the estate endowed for the public shall be
expended on public services
1 In
cases where it is not known how the profits of the estate are to be expended,
unless
there exist some indications as to the donor’s real desires.
2In
cases in which the expenditure of the profits of the estate in the special manner laid
down by the testator is impossible.
Subsection 3
Concerning the Enjoyment of Rights Open to Everyone (Mubahat)
Article 92Everyone
may, in accordance with the laws and regulations applicable to
each
one of them, derive benefits from rights open to everyone (Mhahat).
SECTION 3
Concerning the Rights of Easement Concerning the Property of
Another and the Rights and Privileges Appertaining to a Landed
Property in Relation to Adjacent Property
10
Subsection I
Concerning Rights of Easement Relating to the Property of Others
Article 93The
Right of Easement is a right held by one person on the property of
another.
Article 94Owners
of property may grant to others such rights as they please on their
own property, and in this case the basis of a claim arises out of a deed or contract in
virtue o which the right was granted
Article 95Wherever
someone’s channel for running water or rain has passed through
the
land or house of another person, the owner of that house or land cannot prevent their
passage, unless the absence of his right is proved
Article 96A
spring situated in someone’s land belongs to the owner of that land, unless
another person has rights over its substance or its profits.
Article 97 Whenever
a person has for along time had a water channel running through
the house or property of another to his own property or, has had a right in his favour, the
owner of that house or land shall not hinder the taking of water nor its passage through
his property, and similarly with regard to rights such as holding rights in doors, openwork
windows, aqueducts, irrigation channels and so on.
Article 98If
the owner of a property has given permission to pass through it to’ some
one who cannot do so by right, he may rescind his permission whenever he wishes and
prevent the other from passing through; and similarly with other rights of easement.
Article 99No
one has the right to take his water channel into the property of another,
nor
to cause rain water from his roof to flow onto the roof of the property of another, nor to
throw snow on to it unless he has permission from the owner.
Article 100if
the water channel of one person passes through the house of another, and
if it becomes damaged in such way as to cause damage to the house, the owner of the
house has no right to oblige the owner of the channel to repair it, but he himself must
take
steps to prevent it from causing him loss. Should the damage to the channel obstruct the
passage of water, the owner of the house is not obliged to repair the channel, but the
owner of the right of passage must himself remove the obstruction, and to make the
repairs may enter the house or land, but except when there is such a necessity, he has
no
right of entry, without the permission of the owner.
Article 101Whenever
someone derives profit, such as the working of a mill or similar
things, from water which is the property of someone else in accordance with some right,
the owner of the water cannot change the course of the channel in such way as to
prevent
this right from being profitably exercised.
Article 102Whenever
an estate is transferred either in its entirety or in part to someone
else, rights of easement over another estate or portion of it being included therein, such
rights remain unchanged unless there be a stipulation to the contrary.
Article 103Whenever
the partners in a property possess rights and benefits and that
estate is divided between them, each partner shall in proportion to his share, become
the
11
owner of those rights e. g. , if an estate possessing the right of passage through another
estate be divided between several persons, they each have the same right of passage
as
before over the said place.
Article 104A
right of easement necessarily implies the exploitation of that right e.g., if a
person has the right of taking water from the springs, tanks or reservoirs of others, he
shall have the right of passage to such springs, tanks and reservoirs for the drawing of
water.
Article 105Any
expenses which may be necessary for the enjoyment of a right of
easement are a charge upon the owner of that right, unless an agreement to the
contrary
has been arrived at between him and the owner of the property.
Article 106The
owner of a property on which another person has a right of easement
cannot use his property in such way as to result in damage, or suspension of the said
right
,except with the permission of the owner of the right.
Article 107The
benefits attaching to a right of easement are valid to the extent agreed
upon , or to the extent recognized by common usage, and necessitated by the
exigencies
of exploitation.
Article 108in
all cases where a person’s exploitation of another person’s property rests
upon a simple permission, the owner can withdraw his permission whenever he pleases,
unless there exists a legal impediment to this.
Subsection 2
Concerning the Rights and Privileges Appertaining to a Property in
Relation to Adjacent Property
Article 109A
wall situated between two properties is considered as common property of
the owners of the two properties, unless there is an indication or reason to the contrary.
Article 110Building
by placing marks, or the placing of a beam, are among the
indications which denote occupation and exclusive rights.
Article 111Wherever
there are buildings adjoining the wall in a permanent manner on
both sides, or beams are placed on the wall on both sides, the wall is deemed common
property unless the contrary is proved.
Article 112Wherever
there are circumstances of exclusive right on one side only, the
whole wall is deemed to belong to the owner of that side, unless the contrary is proved
Article 113 Expenses
in connection with a common wall are a charge upon those who
have a share in it.
Article 114Neither
of the partners can oblige the other to build or repair a common wall,
unless there is no other method of avoid in loss
Article 115in
a case where a common wall is damaged and one of partners refuses to
repair it or to allow it to be taken in hand for common building operations, the other
partner can repair his own special of the wall.
12
Article 116If
one of the partners agrees to the other taking the wall in hand for building
operations, but declines to bear the expenses, the other partner can repair the wall, and
in
this, case if the new fabric is made with common materials, the wall will be a common
wall, otherwise it belongs to the partner who has repaired it.
Article 117if
one of the partners damages a common wall and the damaging of it was
unnecessary, he must rebuild what he has destroyed.
Article 118Neither
of’ the two partners has the right to raise a common wall, or to
impose a structure or place a beam on it, or to open a window or a niche in it, or make
any kind of change, except with the permission of the other partner.
Article 119If
one of the partners has beams on a common wall, he cannot change their
position and place them on another part of the wall without the consent of the other
partner.
Article 120if
the owner of a wall gives his neighbor permission to place a beam upon
his wall or to build on it, he can with draw his permission whenever he please, unless he
has bound himself to forego this right
Article 121If
someone has placed a beam upon a wall with the permission of the owner
of the wall, and then removes it, he cannot replace it except with fresh permission from
the owner of the wall; and the same applies to other encroachments.
Article 122If
a wall is leaning over towards another property or a highway, or the like,
in such a way that it is near to collapsing, the owner of it is obliged to pull it down.
Article 123If
a house or a piece of land is divided between two persons, one of them
cannot oblige the other to join with him in erecting a wall between the two parts.
Article 124If
a beam of a building has in the past rested on a neighbour’s private wall
and the past history of this occupation. is unknown, it must remain in its former state,
and
if by reason of the building, the beam is removed, the owner of the building can renew it,
and the neighbour has no right to prevent him from doing so, unless he proves that the
former state of affairs had been brought into being solely by permission.
Article 125If
a lower storey belongs to one person and an upper storey to 3omeone
else,
each of the owners can make normal use of his own special part, but as regards the
ceiling between the two storey, each of the owners can use the floor or ceiling of this
own
special part only in such normal ways as not to interfere with the rights of the other.
Article 126The
owner of a lower apartment and the owner of an upper apartment are
acknowledged as the sole possessors of the lower and upper apartments respectively,
and
as the joint possessor of the ceiling between the two apartments.
Article 127An
Upper staircase is a accounted the property of the owner of the upper
storey, unless the contrary is proved.
Article 128Neither
of the owners of an upper and lower storey can oblige the other to
repair, or help. to repair, their walls and ceiling
Article 129If
a ceiling between an upper and lower apartment is damaged and the two
owners do not agree as to its repairs, and no binding agreement between them has
formerly existed, and if one of the owners repairs the ceiling as a pious act, the ceiling is
13
a common one of it has been made with common materials, and belongs to the person
who has built it ,if made with private materials
Article 130No
person possesses the right to put up a projecting porch on his house
over
looking his neighbour’s courtyard without the latter’s permission; and if he has put up
such a porch without permission, he will be obliged to remove it.
Article 131If
a branch of someone’s tree enter the courtyard of his neighbour’s house or
into his land, the owner must bend it back, and if he does not, his neighbour can bend it
back, and if he does not succeed, he can cut it away from the boundary of his property;
and these provisions apply also to roots of trees which enter another’s property
Article 132A
person cannot make use of this property in such a manner as necessarily
to
involve a neighbour in loss, except such use as is customary and is required in order to
satisfy his needs or to avoid loss.
Article 133A
person cannot put a door in a wall of his house leading to a neighbour
house, even if the wall is his private property; but he can make an aperture or a lattice in
his own private wall, and his neighbour has no right to prevent him, but can put up a wall
or a curtain in front of the aperture or lattice to prevent his seeing through it.
Article 1 34None
of the partners in a ferry or a water course
can prevent the other
partners from crossing it or taking water away.
Article 135Trees,
pits and the like, which separate properties will be subject to the
same
provisions as partition walls.
Subsection 3
Concerning the Borders of Properties
Article 136The
borders of a quantity of land are the boundaries of the property, the
water channels, the streams and the like, which are necessary for the complete
exploitation of the land.
Article 137The
borders of a well are 20 gaz for drinking water and 30 gaz for
cultivation 1.
Article 138The
borders of a spring or a qanat (water channel) are 500 gaz on all sides
in
loose earth, and 250 gaz in hard earth; but if the distances on all sides in loose earth,
and
250 gaz in hard earth; but if the distances mentioned in this and the proceeding Article
are not enough to avoid loss, distances to the extent required to prevent loss shall be
added to them.
Article 139Borders
are governed by the provisions applicable to the property of the
owner of the borders and any occupation or use of them which is contrary to the purpose
of the borders is invalid without permission from the owner; and therefore nobody can
dig a well or water channel (qanat) within the borders of another spring or channel. But
activities which do not cause loss are permissible.
14
BOOK 2
Causes of Ownership
Article 140Ownership
is acquired
1By
the rehabilitation of waste land and the annexation of the allowable properties.
2By
means of contracts and obligations.
3By
acquisition in virtue of a right of preemption.
4By
inheritance.
Part 1
Concerning the Rehabilitation of Waste Land
And Annexation of Allowable Properties
Chapter 1
Rehabilitation of Waste Lands
Article 141Actions
directed towards the reclamation of land are those which make
waste and unclaimed land profitable by means of operations which are included by
custom under the heading of cultivation, such as husbandry, tree planting, building etc.
Article 142To
begin to cultivate land e.g . by arranging stones round a plot or by
digging a well etc: is called leveling (Tahjir) and does not bring about ownership ; but it
creates for him who has performed the leveling, a prior right to carry out the cultivation.
Article 143A
person who cultivates with the intention of taking possession thereof, a
part of a stretch of waste and unclaimed land, becomes the owner of that part.
Article 144The
reclamation of the boundaries of a piece of land involves the ownership
of the middle of it also.
Article 145The
cultivator must observe in every respect the other laws relating to this
subject.
Chapter 2
Annexation of Allowable Properties
Article 146Annexation
means occupation and laying hands upon a thing, or the
preparation of the means of annexation or occupation.
Article 147A
person who annexes allowable properties and observes the relevant laws
becomes the owner of them.
Article 148A
person who digs a canal in a piece of unclaimed land and joins it to a river
has made that canal and becomes the owner of it; but while it is still separate from the
river it is accounted as leveling
15
Article 149If
a person digs a stream or a channel for the purpose of annexing unclaimed
water, the unclaimed water which flows into this stream or channel belongs to the owner
of the channel, and another stream cannot be opened from it, or land watered from it
without the owner’s permission.
Article 150If
several persons are partners in the digging of a channel or a well ,they
become the owners of the water in proportion the labour and expense which has been
effective in bringing about improvements, and the water will be divided between them in
the same proportion.
Article 151 None
of the partners can open up another channel from a common channel,
or broaden or narrow the mouth of a stream or build a bridge or a mill over, or plant trees
beside it, or make any use of it, except with the permission of the other partners.
Article 152If
the appointed share of water of one o the partners in a common stream
flows into a private channel belonging to him, that water becomes his private property,
and he can use it in any way.
Article 153If
a stream is common to a number of people, and there is a dispute about
the
size of each man’s share, they shall be judged to have equal shares, unless there exists
a
reason for the share of some of them to exceed others.
Article 154A
person cannot carry water to his property across the property of another
person without the latter’s permission, even if there is no other route.
Article 155Everyone
has the right to irrigate his land form an unclaimed stream or to
pen up another stream it for his land or his mill or his other needs.
Article 156If
the water of a stream is not enough to irrigate all the land round it and the
owners of the land are in dispute about priority and non priority,
and none of them can
prove a right of priority, every piece of land which is nearer to the source of the water
shall, in due order, have the right of priority over land which is lower down, to the extent
of its needs.
Article 157If
two pieces of land on both sides of stream are also situated opposite each
other and the right of property of one over the other is not established, and both owners
wish to draw water at the same time, and the water is not enough for both, they must
draw lots in drawing water in proportion to their shares, and if the water is enough for
both, they will divide it in proportion to their shares.
Article 158If
the dates of the beginning of cultivation of lands bordering on a river are
different, the land first cultivated has a prior claim to the water over land cultivated later,
even though it is situated lower than the latter.
Article 159If
a person wishes to cultivate for the first time a piece of land bordering on
a river , and there is a surplus of water and the owners of the existing plots will not be
hampered, he can irrigate the new land with the water from this river ; otherwise he has
no right to draw water, even if his land is higher than the other lands.
Article 160if
a person digs a qanat (water channel) or a well in his own land or in
unclaimed land for the purpose of annexing it, in order that he shall reach water or cause
water to flow, he becomes the owner of the resulting water, but so long as he has not
struck in unclaimed land, his activities are accounted as leveling.
16
Chapter 3
Concerning Mines
Article 161A
mine situated in somebody’s land belongs to the owner of the land, and
the working of it will be subject to special laws.
Chapter 4
Concerning Found Objects and Lost Animals
Section 1
Found Objects
Article 162A
person who finds an object worth less than one Dirham1 weighing 12.6
noknods silver can take possession of it.
Article 163 if
the object found is worth one Dirham, weighing 12.6 noknods silver, must
announce the finding for one year; if the owner of the object does not appear within this
time, the finder is entitled to keep it in trust or to make use of it. In the event of his
keeping it in trust and being destroyed through no fault of his, he will not be responsible
for it.
Note: If the finder acquires knowledge at the beginning or before the end of one year
that
announcement is of no avail, or if he loses the hope of discovering the owner of the
object, he will be released of the obligation to make the announcement.
Article 164An
announcement of the finding of an object consists in publishing and
advertising according to religious requirements in such a way that the finding of the
object is brought to the notice of the inhabitants of a place in a customary way.
Article 165Anyone
who finds an object in a deserted or ruined place, which is
uninhabited and which is not privately owned, can take possession of such an article
need
not announce it, unless it is evident that it belongs to present time, in which case it will
be
considered in the same way as other objects found in inhabited places.
Article 166If
anyone finds an object on another’s property or on property that has been
bought from another and presumes that the article belongs to the proprietor or the
former
proprietors, he must inform them. If these proprietors claim the object and if there is
some proof of their ownership, the object must be returned to them. Otherwise the finder
must deal with the object in the manner already prescribed
Article 167If
the object found is not durable but is perishable, it must be sold at a
reasonable price and this price will be considered as the property itself.
Article 168If
the object found no longer exists when its discovery is reported, through
no fault of the finder, he shall not be held responsible
Article 169When
an object has been found, any profit accruing to it belongs to the
former owner till such time as the finder has established his right to keep it ; after that,
the profits belong to the finder
17
Section 2
On Lost Animals
Article 170A
lost animal is an animal possessed by someone which is found without
being in anyone’s possession. Animals, however, on their grazing grounds or near a
watering place or those capable of defending themselves from ferocious animals cannot
be considered as lost.
Article 171Anyone
who finds a lost animal must return it to its owner, or if the owner is
unknown, he must deliver it to the judge or his substitute. If he does not do this, the
finder will be held responsible for the animal, even if he released it after taking
possession of it.
Article 172If
a lost animal is found inhabited area and the finder, though he has access
to a judge or his substitute, fails to hand over the animal, he will not be entitled to claim
eventually from, the owner expenses incurred. When an animal has been found in an
uninhabited area, the finder can claim any expenses from the owner so long as he has
gained no benefit himself from the animal. Otherwise the expenses incurred will be
brought into account against any benefit gained and only the balance will be claimable
by
the finder or the owner as the case may be.
Chapter 5
On Buried Tresure
Article 173Buried
treasure is that found by chance below ground or buildings.
Article 174Buried
treasure of which the owner is not known is the property of the
finder.
Article 175if
treasure is found by someone buried on the property of another person, he
must inform that owner ; in case the latter claims the treasure and can prove his claim,
the
treasure will belong to the person who claims ownership
Article 176When
treasure is found buried in unclaimed land it shall belong to the finder.
Article 177Jewels
found in the sea belong to their finder. Flotsam and jetsam also
belong to the finder.
Article 178Articles
which have sunk in the sea and have been abandoned by their
owner
belong to the one who retrieves them.
Chapter 6
On Games
Article 179Captured
wild animals belong to the pursuer.
Article 180Capture
of tame animals and of other animals that bear marks of ownership
does not confer ownership.
18
Article 181 If
anyone prepares a hive or a place for bees, the bees and the honey shall
be
his property. Similarly pigeons gathered in a pigeon tower belong to the owner of the
tower.
Article 182Other
game laws will be laid down in special regulations.
PART 2
Regarding Contracts, Transactions And Obligations
Chapter 1
Contracts and Obligations in General
Article 183 A
contract is made when one or more persons make a mutual agreement
with another one or more persons, on a certain thing, and that agreement is accepted by
the latter person.
Section 1
Different Types of Contracts and Transactions
Article 184 Contracts
and transactions are divided into the following categories a
binding contract a
revocable contract an
optional contract an
unconditional contract conditional
contract .
Article 185A
binding contract is one which cannot be broken by either party except
under specified circumstances.
Article 186 A
revocable contract can be cancelled by either party whenever he likes
Article 187 A
contract may be binding one party but revocable by the other
Article 188 An
optional contract can be cancelled by either party, by both parties or by
third party.
Article 189 An
unconditional contract is one which is not, in the intention of the
makers, contingent upon any outside matter Otherwise it is a conditional contract.
Section 2
On the Essential Conditions for the Validity of a Transaction
Article 190 For
the validity of a contract the following conditions
are essential:
I The
intention and mutual consent of both parties to the contract
2 The
competence of both parties.
3 There
must be a definite thing which forms the subjectmatter
19
of the contract
4The
cause of the transaction must be lawful.
Subsection 1
Regarding the Intention and Mutual Consent of Both Parties
to the Contract
Article 191 A
contract only becomes complete through the real intention of the
contractor, and this real intention must be accompanied by some factor which proves
that
there was such an intention
Article 192 If
either party or both are unable to speak, a sign which indicates intention
and acceptance will be sufficient.
Article 193 A
transaction may be created by an act which indicates intention and
consent, such as taking delivery or handing over unless in circumstances excepted by
law.
Article 194The
words, signs or other acts by which both parties perform the transaction
must be coordinated so that each party accepts the transaction which the other intended
to
perform Otherwise the transaction will be null and void.
Article 195 If
anyone makes a contract when drunk, unconscious or asleep, the
contract
is null owing to absence of intention.
Article 196 Anyone
who makes a contract it is deemed that he is acting for himself
unless in making the contract the contrary is laid down or unless subsequent evidence to
the contrary is established. When making a contract, however, anyone can make
provision for the benefit of a third person.
Article 197 If
the price or the subject of a sale in a contract is a thing which belongs to a
third party, the contract will be on behalf of the owner of that thing.
Article 198 Either
or both parties may represent another .It is also possible that one
person would act as the representative of both parties to a contract.
Article 199 Consent
obtained as a result of mistake or duress will not make a contract
enforceable
Article 200 Only
mistakes connected with the subject of a transaction will invalidate it.
Article 201 A
mistake made as to the identity of one party will not affect the interests of
the other party in the transaction, except when the identity of this second party forms the
principal reason of the transaction.
Article 202Duress
is caused by acts which affect reasonable person through threats
against his person, property or honour in a way that he cannot be expected to withstand.
In connection with such threats .the age, personality, nature and sex of the person must
be
taken into consideration.
Article 203 Duress
will make a contract unenforceable even when it is caused by an
outside party other than the two parties concerned.
20
Article 204Threats
made by one party against the body or property or honour of close
relatives (of the other party) such as husband, wife, father or children are regarded as
causing duress. In connection with this Article the closeness of the relationship must be
considered according to custom, in estimating the duress.
Article 205 When
a threatened person knows that the threat cannot be carried out or
when he is able to defend himself without difficulty from the threat or from performing
the contract, the man who made the threat cannot be regarded as having used undue
force
Article 206If
anyone is constrained to make a transaction through distress, this is not
regarded as duress and such a transaction is considered valid.
Article 207 The
imposition of a transaction on a person by an order of competent
judicial authorities is not considered as made under duress.
Article 208 If
one party fears the other, though not threatened by him, this is not
regarded as being duress.
Article 209 A
transaction ratified after the removal of any undue force is binding.
Subsection 2
Regarding the Competence of the Parties
Article 210Both
parties should be competent to transact the business
Article 211 In
order that a contract may be valid both parties to it must be of age, must
be in their proper senses and must have reached puberty.
Article 212 A
transaction between people who are not of age, nor in their proper senses
nor mature is invalid because of their incompetence.
Article 213 A
transaction made by incapacitated persons cannot he valid.
Subsection 3
Regarding the Object of a Transaction
Article214 The
object of a contract must be some property or act which both the parties
agree to deliver or execute.
Article 215 The
object of a contract must be capable of being owned and must embody
some reasonable and legitimate advantage.
Article 216 The
object of a transaction should not be ambiguous except in special
cases
where a general knowledge of the matter would be sufficient
Subsection 4
Regarding the Reason for a Transaction
Article 217In
a contract it is not necessary to explain the reason for making it, but if this
is done the reason must be a legitimate; otherwise the contract will be null and void.
21
Article 218 If
it is known that the contract has been made with the intention evading
formally some liability, the contract will be null and void.
Article 218 If
the creditor files a petition with the court submitting evidence to the effect
that the debtor, to evade his liability, intends to dispose of his properties, the court may
enter an attachment writ in the amount of his debt, in which event he cannot sell his
properties without the authorization of the court.
Section 3
Regarding the Effect of Contracts
Subsection 1
Regarding General Rules
Article 219 Contracts
made according to law are binding on the parties or their
substitutes, unless they have been cancelled by mutual agreement or for some legal
reason.
Article 220 A
contract not only binds the parties to execute what it explicitly mentions,
but both parties are also bound by all consequences which follow from the contract in
accordance with customary law and practice, or by virtue of a law.
Article 221 If
any party undertakes to perform or to abstain from any act, he is
responsible to pay compensation to the other party in the event of his not carrying out
his
undertaking provided the compensation for such losses is specified in the contract or is
understood in the contract according to customary law or provided such compensation is
by law regarded as guaranteed.
Article 222 In
case of failure to comply with the abovementioned
stipulations, a djudge
can, while observing the above Article authorize the party in whose favour the
undertaking was made to perform the act in question himself and condemn the
defaulting
party to compensate the expenses incurred.
Article 223Any
contract entered into is understood to be genuine unless its false nature
is proved.
Article 224 The
wording of a contract shall be read according to the meaning
understood by customary law.
Article 225 If
certain points that are customarily understood in a contract by customary
law or practice are not specified there in they are nevertheless to be considered as
mentioned in the contract.
Subsection 2
Losses Incurred Through Nonfulfillment
of Contracts
Article 226 In
the event of nonfulfillment
of an undertaking by one party, the other
party cannot claim damages for loss sustained, unless a special period was fixed for
22
fulfillment of the undertaking and that period was expired . If no period was fixed for the
fulfillment of the undertaking a party can only claim damages if the power for fixing the
period for such fulfillment was vested in him and if he proves that he asked for the
fulfillment of the obligation.
Article 227 The
party who fails to carry out the undertaking will only be sentenced to
pay damages when be is unable to prove that his failure was due to some outside cause
for which be could not be held responsible.
Article 228If
the object of an agreement consists of the payment of a sum in cash, the
judge can, subject to the terms Article 221, convict the debtor to pay compensation for
losses incurred through delay in the payment of his debt.
Article 229 If
a man who has into an undertaking is prevented from fulfilling it by some
elements not within his control, he shall not be convicted to compensate for losses.
Article 230 If
in a contract the amount of compensation to be in the event of its non fulfillment
is laid down, the judge can condemn the offender to pay more or less than the
sum fixed.
Subsection 3
Regarding Effect of Contracts on Third Parties
Article 231 Undertakings
or contracts are only binding on the two parties concerned or
their legal substitutes except in cases coming under Article 196.
Section 4
Regarding Conditions Fixed at the Time of Making Contracts
Subsection 1
Regarding Different Types of Conditions
Article 232 The
following conditions are of no effect though they do not nullify the
contract itself:
1 Conditions
which are impossible to fulfill.
2 Conditions
which are useless and unprofitable.
3 Conditions
which are not legal.
Article 233 The
following conditions are of no effect and will nullify the contract itself:
1 Conditions
which are contrary to the requirements of a contract.
2Conditions
which are unknown and of which lack of knowledge entails ignorance of
the consideration.
Article 234 Conditions
are of three different kinds
23
I Conditions
of description.
2 Conditions
of collateral events
3 Conditions
about the performance of a contract.
Of these the first category refers to the quantity or quantity of the object. The second
provides for the fulfillment or the happening of some extraneous event; and the third
arises when a condition is made as to the performance or non performance by one of
the
two parties or by a third party.
Subsection 2
Regarding Provisions Governing These Conditions
Article 235 If
there is a condition of description which is not fulfilled, the party who
stands to benefit by the contract shall have the right to cancel it.
Article 236 As
regards the result of a contract, if the realization of the result does not
depend upon a special circumstance, it follows from the fulfillment of the condition itself.
Article 237 If
the condition, made as part of the contract, be a condition involving the
performance or the nonperformance
of an act, a person who has undertaken to carry
out
such an act must do so; in the event of his failure to do so, the other party may apply to
the judge asking that he may be compelled to execute the condition
Article 238 If
the performance of some act has been undertaken under the terms of a
contract, and if it proves impossible to force the party who should perform the act to
fulfill his obligation, though the could be performed by some other person, the judge can
at the expense of the person at fault arrange for the performance of the act.
Article 239If
it is not possible to force the fulfillment of an act by the person who
should perform it and if the act is of such a kind that no one else cancel the contract.
Article 240 If
when a contract has been made it is found that the carrying out of its
condition is impossible or if it becomes known that the carrying out was impossible when
the contract was made, the person in whose favour the contract was drawn up will have
the option of canceling the contract, unless the condition becomes impossible of
fulfillment owing to some act of the person in whose favour the contract was drawn up.
Article 241 In
a contract it may be specified that one of the parties should give security
or pledge for the fulfillment of his obligation.
Article 242 If
it is stipulated that one of the parties should pledge certain property and if
that property is destroyed or damaged, the other party will have the right to cancel the
contract but not the right to demand the delivery of the equivalent of the pledged
property
or any compensation for damages. If such pledged property is destroyed or damaged
after delivery there will be no right of cancellation of the contract.
Article 243 If
a contract provides for a guarantor and if this condition is not fulfilled, the
person in whose favour the condition was made will have the right to cancel the contract.
24
Article 244 A
party in whose favour a condition is made may surrender his claim to the
fulfilment of that condition, and in that case the condition cases to be part of the contract;
conditions about the result of a contract cannot, however, be cancelled in this way.
Article 245 The
waiver of the right engendered from a condition may be made either
orally or by some act, which indicates such waiver.
Article 246 When
a contract is terminated by mutual consent, its condition becomes
null
and void and if one party has fulfilled his obligation under the contract he can claim
compensation from the other party in whose favour he did this.
Section 5
Regarding Contracts Which Deal With the Property of a Third
Party or Which Are Unauthorized
Article 247 Contracts
regarding the property of others, except those entered into by
natural guardians, executors or legal representatives, are not binding even thought the
owner of the property agrees there to; if, however, after the contract has been made the
owner of the property signifies his consent, the contract becomes binding
Article 248 The
consent of the owner of a property in an unauthorized contract can be
signified orally or by an act which signifies his consent to the contract.
Article 249 The
silence of the owner of a property, even if he is present when the
transaction is made, cannot be taken as indicating his consent.
Article 250 Such
consent is only effective and valid if it has not been previously
refused; otherwise it is not effective.
Article 251 The
refusal of an unauthorized transaction is effective whether expressed
orally or by some act which indicates absence of consent.
Article 252 Consent
or refusal need not be immediate; in case of delay causing loss to
a
party who has acted in an authorized manner he shall have the right to break the
contract
Article 253 In
the case of an unauthorized contract, if the owner of the property dies
before signifying his consent or refusal, this consent or refusal can be given by the heirs.
Article 254 If
the property referred to in an unauthorized contract subsequently passes
into the possession of the unauthorized person in some way, this mere ownership will
not
make the original contract binding
Article 255 If
anyone makes a contract which is acknowledged to be an unauthorized
contract and the property in question belongs to the man who made the contract or to a
person on whose behalf he was authorized to act as a guardian, or legal representative
the
validity of the contract depends on the renewed consent of the person who made the
contract; if he does not give such consent the contract is invalid.
Article 256 In
the event of anyone transferring property of himself or anyone else in one
contract, or accepting the transfer of property for himself or another, the contract is
binding on himself but is considered unauthorized for anyone else.
25
Article 257 If
the object of an authorized transaction is made the object of other
transactions also, before the owner of the property signifies his consent or refusal to the
first unauthorized transaction, this owner can approve any of the transactions which he
likes and the transactions dependent there on shall be valid, while the previous ones
shall
be null and void.
Article 258 In
respect of any profit on a property which formed the object of an
unauthorized contract or in respect of any return on that property, consent or rejection
will be effective as from the date of the contract.
Article 259 When
any property has been handed over to a third party by a seller who is
not authorized by the owner and when the owner of the property does not give his con
sent, the party who hold the property is responsible for the object and its usufruct.
Article 260 If
an unauthorized seller receives a consideration for the object of sale and
keeps the said consideration in his possession, and the owner while approving the
transaction permits taking delivery of the consideration then the said owner shall have
no
recourse against the other party.
Article 261In
the case where property has been disposed of without authority and the
original owner withholds his consent, the purchaser will be responsible for the actual
property and any profits on it during the time he held it, even if he has not derived any
benefit from it, and also he will be held responsible for any damage to the property while
it was in his possession.
Article 262 Under
the circumstances described in the above Article the purchaser of the
property shall have the right to claim from the man who sold it to him without authority
for the return of the actual consideration, or a property identical there to, or its equivalent
in value.
Article 263 If
the original owner of any property refuses to sanction a transaction about
it and the purchaser is ignorant of the fact that the sale was unauthorized, he can claim
back from the unauthorized seller both the consideration and the losses incurred, but he
can only claim back the consideration if he knew that the transaction was made without
authority.
Section 6
Regarding the Termination of Obligations
Article 264 Obligations
can be extinguished in the following ways:
1 By
fulfillment of the obligations.
2 By
cancellation of the bargain.
3 By
release from the obligation.
4By
substitution of a different obligation.
5 By
set off and recoupment.
6 By
acquisition of the debt.
26
Subsection 1
Concerning Fulfillment of the Obligation
Article 265 If
anyone gives property to another, it is deemed that he has not done so
without consideration; therefore if a person gives property to another, while he is under
no obligation to do so, he can ask for the return of such property.
Article 266 If
an undertaking is made in such manner that the obligee has no legal right
to demand its fulfillment, in the event of fulfilling it on the part of the obligor of his own
will then his claim for restitution will not be admissible.
Article 267 If
someone who is not the actual debtor pays the debt in question although
he does so without the debtor’s permission, the debt shall be discharged; if, however,
payment is made by permission of the debtor, the payer can refer to the debtor, but
otherwise not.
Article 268 The
performance of an act, when it has been stipulated that it should be
done by a party to the contract, cannot be effected by another person except by consent
of
the obligee.
Article 269 For
fulfillment of an obligation a payment by a party there to is only
effective if he delivers what he himself owns or what he is authorized by its owner to
deliver, and if he is personally competent to do so.
Article 270 If
the obligor makes some payment in fulfillment of his obligation, he
cannot claim for the return of the same from the obligee on the grounds that when he
made the payment he did not owe the amount in question, unless he proves that the
amount belonged to another but was legally in his possession though without the right to
pay it to anyone.
Article 271 A
dept shall only be paid to the creditor or his attorney or to someone
legally entitled to receive such payment.
Article 272 The
payment of a debt to anyone other than those specified in the foregoing
Article can only be made by consent of the creditor.
Article 273 If
a person entitled to receive payment of a debt refuses such payment, the
obligor can obtain discharge by making payment to a judge or his substitute and from
the
date of payment his liability for damages in respect of the object of the undertaking shall
cease.
Article 274 If
the obligee is not competent to receive any payment there under, such
payment will not be valid.
Article 275 The
obligee cannot be obliged to accept any goods which do not constitute
the object of obligation even if they are of a like or greater value.
Article 276 A
debtor in fulfillment of an undertaking cannot deliver any goods, of
which the disposal has been forbidden by a judge.
27
Article 277 The
obligor cannot deliver only a proportion of the amount due to the
obligee, but a magistrate may grant a period of grace or arrange for payment by
installments if the debtor’s financial situation calls for such action.
Article 278 If
a particular property constitutes the object of the obligation then the
delivery thereof to its owner in its actual state at the time of delivery shall discharge the
obligor from his responsibility, even if the property is deficient or defective, so long as
the deficiency or defect is not due to the excessive use or negligence of the obligor,
except in the cases stipulated in the law. If, however, a party bound by a contract delays
in delivering such property at due date and when its delivery has been claimed, he will
be
responsible for any deficiency or defect even if this deficiency or defect even if this
deficiency or defect was caused by no fault of his.
Article 279 When
the goods to be handed over under a contract are not particular
goods
but are of a general nature, a party bound by the contract need not deliver goods of the
best quality, but he must not hand over goods which according to custom and usage are
considered defective.
Article 280 Any
act under a contract must be performed at the place where the contract
is made, unless the parties to the contract have made a special arrangement or unless
usage or custom require some other procedure.
Article 281 Any
expenses incurred in connection with the payment of a debt must be
borne by the debtor, unless a provision to the contrary is made.
Article 282 If
under a contract one party owes several sums to one other party, the
debtor shall decide on what count any particular payment is made.
Subsection 2
Concerning Cancellation of a Bargain
Article 283 After
a contract has been made, the parties may cancel and terminate it by
mutual agreement.
Article 284 Cancellation
can be made by any oral declaration or by any act which
indicates such cancellation.
Article 285 The
object of a cancellation may be the whole or a part of the object a
contract.
Article 286 The
loss of either the object of sale or the consideration will not prevent the
cancellation of the bargain. In such an event, the counterpart of one of the objects which
has been destroyed if such object happens to have counterparts or the price thereof, if
such object happens to be appraisable, may be given in its place.
Article 287 Separable
accretion and usufruct with accrues under a contract between
the
time of its being made and its cancellation shall belong to the party who under the
contract has become the owner. But usufruct which is an integral part of the property
dealt with under a contract belong to the party who owns the property after the
cancellation of the contract.
28
Article 288 If
the owner of some property by a contract improves the property after the
making of the contract so that it appreciates in value, this difference in value shall belong
to him when the contract is cancelled.
Subsection 3
Concerning Release From an Obligation
Article 289 Release
from an obligation takes place when a creditor voluntarily waives
his claim.
Article 290 Release
from a contract is only effective when the party to the contract has
the power to terminate it.
Article 291 The
release of a dead man from a debt is valid.
Subsection 4
Concerning Alteration of the Obligation
Article 292 Alteration
of an obligation can be effected in the following cases
1 When
both parties to a contract agree owing to whatever cause to the change of the
original obligation in some way and its replacement by a new obligation as substitute,
the
obligor shall be released as far as the original is concerned.
2 When
a third party agrees with the consent of the creditor under the contract to pay
the debt by the contract debtor.
3 When
the creditor under a contract transfers his right to another party.
Article 293 When
an obligation is altered, any securities laid down in the original
agreement will not be binding under the subsequent agreement, unless the two parties
have made express stipulation to that effect.
Subsection 5
Concerning Setoff
and Recoupment
Article 294 When
two parties are indebted to one another, a setoff
may be effected
regarding their mutual debts in the ways explained in the following Articles.
Article 295 Setoff
is an obligatory process which is effected without the necessity of
the two parties giving their consent. Thus when two parties are indebted to one another
at
the same time, their debts are annulled by setoff
to the extent of the amount owed by
both parties and the parties to that extent released their mutual debts.
Article 296 Setoff
can only take place when the object of the debts are of the same
nature and when their place and date of payment coincide, no matter what may be the
reason for the debt.
Article 297 When
after a guarantee has been, the beneficiary becomes indebted to the
guarantor. This fact will not release the guarantor from his undertaking.
29
Article 298 When
only the place of payment differs in two debts, setoff
will be
effective either on payment of the cost of transport entailed in transferring the thing from
one place to another or an agreement between the parties not to require delivery in the
specific place.
Article 299 Setoff
will not be binding in respect of the indisputable rights of third
parties. Thus if an object owed to a certain creditor is seized legally in favour of a third
party, and the debtor becomes a creditor of his original creditor, the former cannot,
under
a plea of setoff,
refuse to deliver the seized goods.
Subsection 6
Concerning Passing of Ownership
Article 300 If
a debtor becomes owner of what he owes, his liability ends. Thus, if
anyone is the debtor of his ancestor, the debt is settled after the death of the said
ancestor
to the extent of the portion of inheritance to which the said debtor is entitled to.
CHAPTER 2
OBLIGATIONS INCURRED WITHOUT A CONTRACT
Section 1
General Definitions
Article 301 Any
person who intentionally or inadvertently acquire goods to which he
has no claim, is bound to deliver such goods to the actual owner.
Article 302 If
anyone owing to a mistaken belief that he is in debt pays that debt, be has
the right to reclaim the amount in question from the person who took it without right.
Article 303 Anyone
who receives any property without any right is responsible for the
actual property and for any profits that may accrue thereto, whether or not he is aware of
his having no right to the property.
Article 304 If
anyone, under the wrongful impression that he is entitled to possess
some
goods, disposes of the same, this transaction is regarded as an unauthorized one and is
subject to the provisions laid down regarding such transactions.
Article 305 In
the cases described above the owner of the property must pay any
expenses entailed through its maintenance, unless the man who took possession of the
property knew that he had no right to do so.
Article 306 If
anyone manages the property of a party who is continuously absent an
incapacitated person or the like, without the permission of the owner or the person who
has the right to give permission, he must give an account of his period of management.
If it would have been possible to have obtained permission at the time or if delay in
interfering in the matter would have caused no loss, then no claim for expenses of
management can be entertained. If how ever, a lack of intervention or a delay in such
30
action would have entailed losses to the owner of the property, expenses of
management
can be claimed by the person who performed the duties of manager.
Section 2
On Automatic Liability
Article 307 The
following matters entail automatic
1 Usurpation
or the acts which are deemed as usurpation.
2 Deliberate
destruction.
3 Indirect
destruction.
4 Taking
advantage.
Subsection 1
On Usurpation
Article308Seizure
of another right by violence is called usurpation. Laying hands on
another’s property without justification is also considered as usurpation.
Article 309 If
anyone prevents the owner of a property from tan of it but yet does not
himself exert control over the property, he is not considered as usurper, but if he
destroys
the property or causes such an act, he will be responsible.
Article 310 If
anyone denies that property he has been deposited with him or lent to him
or similarly delivered to him, although such delivery has taken place, he is considered to
be guilty of usurpation as from the date on which he denies the fact.
Article 311 A
person who has usurped anything should return the thing itself to the
owner, if it has been destroyed lie must give a similar property or its value. If for any
other reason the return of the actual property is not possible, he must provide a
substitute
or equivalent.
Article 312 If
an equivalent substitute for the misappropriated property cannot be found,
then its value at the time of delivery must be paid. If, however, an exact substitute can
be
found but its possessory value has disappeared the last price must be paid.
Article 313 When
anyone on his own land builds with another’s materials or plants
trees, without the owner’s permission, this second party can demand the demolition of
the
building or the uprooting of the trees unless he agrees to receive the value thereof.
Article 314 If
as a result of the acts of the person who usurped property its value
appreciates, the one who has been guilty of usurpation will have no right to claim the
difference in its value; in case, however, this difference forms a separable part, such
separable part shall belong to the usurper.
Article 315 A
party guilty of usurpation is responsible for any deficiency or defect that
may have been caused during the period of his holding if, even if such deficiency or
defect has not been the result of his action.
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Article 316 If
anyone usurps any property from the man who has previously usurped it,
his responsibility shall be similar to that of the previous offender, even if he is not aware
of the original offence.
Article 317 The
owner of any property can claim the actual property or ,if it has been
lost, similar property or the value of the whole or part of it from either the man originally
guilty of usurpation or from anyone who has subsequently usurped it.
Article 318 Whenever
the owner of some property claims on a party guilty of
usurpation in whose hands the usurped property has been destroyed, the latter has not
right to claim on another party who may have usurped the property, but if the owner
claims on someone guilty of usurpation who, however, was not the person who
destroyed
the property, the latter may claim on another party guilty of usurpation in whose charge
the property was when destroyed or (he may claim) on any persons who subsequently
usurped the property, until the claim eventually falls on the guilty party who held
property when it was destroyed; generally speaking responsibility rests with the party
who had the property usurped by him when it was destroyed.
Article 319 If
the owner of some property regains the whole or part of some usurped
property, he has no right to claim in respect of the amount regained, from any other
person who has been guilty of usurpation.
Article 320 In
respect of profits derived from usurped property, each party guilty of
usurpation is responsible to the amount of profit accruing the time that he has held
usurped property or the time that it has been held by persons subsequently guilty of
usurpation even if he derived no benefit there from when, however, a party guilty of
usurpation has had to pay profit that accrued while the property was held by others who
usurped it later, then he may claim on each of these other persons in proportion to the
period that they held the property.
Article 321 If
the owner of a property releases a party who has been guilty of
usurpation
from returning the equivalent or the value of the property, he shall have no right to claim
on others who have been similarly guilty. If, however, the owner assigns his right to one
of those (guilty) persons, this latter person will become the representative of the owner
and will enjoy the same right that the owner had.
Article 322 Releasing
one of those guilty of usurpation from paying profits accrued to
the property while it was in his charge will not entail the release of others from their
share of such profits, but if he (the owner) releases one of the persons guilty of
usurpation
respect of actual profits, he will have no right to claim on persons who were later so
guilty.
Article 323 If
anyone buys some property from a party who has usurped it, the former is
also responsible and the owner can, in accordance with the provisions laid down above,
refer to both the seller and the buyer and claim the original property or if it has been lost,
its equivalent or its value and also any profits accrued thereto.
Article 324 If
a buyer knows that the property in question has been usurped, then in
respect of property taken back by the owner the rights of claim between the seller and
buyer are similar to those between two parties guilty of usurpation and will be subject to
the above provisions.
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Article 325 If
anyone buys in good faith some usurped property and if the owner claims
it from him, he (the buyer) can in his turn make a claim on the man who sold it to him for
its value and any damages, even if the property was destroyed while in his (the buyer’s)
charge, but if the owner claims on the seller for the equivalent or the price of the
property, the latter will have not right to claim on the buyer.
Article 326 When
anyone has bought property knowing that it had been usurped and
then loses it and has to deliver equivalent property to the original owner, this buyer
cannot claim from the seller for the amount by which this equivalent may exceed the
original property in value, but only for the amount of the (actual) value.
Article 327 If
usurped property has passed from hand to hand otherwise than by sale,
the regulations already given regarding the sale of usurped property will be applicable.
Subsection 2
Regarding Deliberate Destruction
Article 328 If
anyone destroys the property of another person, he will be held
responsible and must either produce its equivalent or its value, whether or not the
property was destroyed intentionally and whether it was the actual property or profits
there on that were destroyed; if he causes defect or damage to such property, he is
responsible for the depreciation in price.
Article 329 If
anyone pulls down the building or house of some other party he must
rebuild it as before and if this cannot be done, he must pay the price of the building.
Article 330 In
case a man kills an animal belonging to someone else, without the
owner’s consent, he must pay the difference in price between a live and a dead animal;
if
the dead animal is worthless, he must pay the full value of the (living) animal . If, how
ever, he kills the animal or damages it in self defense, he will not be held responsible.
Subsection 3
Regarding Indirect Destruction
Article 331 Anyone who causes some property to be destroyed must give back its
equivalent or its value, and if he causes a defect or damage to it he will be held
responsible for any depreciation in value.
Article 332 If
anyone arranges for the destruction of some property and someone else
does the deed, the actual perpetrator will be held responsible and not the party who
caused the deed, unless the latter is the stronger party in such a way that according to
custom and usage the destruction could be attributed to him
Article 333 The
owner of a wall, house or factory is responsible for losses entailed by
its collapse provided that he was aware of the defect which caused it or if it was due to
his negligence.
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Article 334 The
owner or custodian of an animal is not responsible for losses caused by
it unless he has failed to exercise control; but if an animal is made to cause damage the
person who made it to do so will be held responsible for losses incurred.
Article 335 If
a collision occurs between two ships, trains, motor other vehicles
responsibility will lie with the person whose intentional act or carelessness caused the
collision, and if two parties were so responsible for the collision the responsibity will
attach to both of them.
Subsection 4
Regarding Taking Advantage
Article 336 If
a man does an act at the order of another and if according to custom and
usage a wage is payable for such an act, or if the man who has acted is accustomed
and
disposed to under take such work, then he can claim pay for his work, unless it is shown
that he acted gratuitously.
Article 337 If
anyone benefits from another’s property when permission has been
clearly expressed or understood, the owner of the property will be entitled to the
reasonable equivalent of any such profit, unless it be clear that permission was given
without (any question of) payment.
CHAPTER 3
SPECIAL TYPES OF CONTRACTS
Section 1
Regarding Sales
Subsection 1
Regulations Governing Sales
Article 338 A
sale consists of the giving possession of specified goods in return for
known consideration.
Article 339 After
mutual agreement between the seller and the buyer in respect of the
object of the bargain and its price, the sale is concluded by offer and acceptance. A sale
can also be effected by exchange.
Article 340 When
offering and accepting a sale the wording and terms used must
clearly
indicate an act of sale.
Article 341 A
sale may be made with or without any conditions and also a term may be
set for the delivery of the whole or part of the object of a bargain or of the total or partial
payment of its price.
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Article 342 The
quantity, type and nature of the object of the sale must be known and
the fixing of the quantity by weight, measure, number, length, area or by inspection is
made in accordance with the local custom and usage.
Article 343 If
the object is sold by quantity the sale is effected even before it has been
counted or measured in volume in or length
Article 344 If
in the terms of a sale contract not conditions are laid down or no time
limit has been fixed for delivery of its object or for payment of the price, the bargain is
considered definite and the price should be paid at once , unless in accordance with
established rules and local usage or commercial rules and practice certain conditions or
time limit exist for commercial transactions even though they have not been stipulated in
the contract of sale.
Subsection 2
Regarding the Two Parties to a Contract
Article 345 Besides
being legally competent the seller and the buyer must be entitled to
take possession of the property or its value.
Article 346 A
contract of sale should be entered into by mutual consent; a forced
contract is not binding.
Article 347 A
blind person can sell or buy so long as he becomes aware of the nature
of
the object by some means other than seeing it or through the help of another person,
even
if that person is the other contracting party.
Subsection 3
Regarding the Object Sold
Article 348 The
sale of something of which the sale or purchase is by law forbidden, or
which is not (describable as) property or which can bring no reasonable profit or which is
not within the seller’s power to deliver is null and void unless the purchaser himself is
able to take possession of it.
Article 349 The
sale of property that is religious endowment is not valid unless there is
a dispute among the beneficiaries in such a way that there is a fear of bloodshed or of
the
destruction of the endowed property, and except in the cases provided for in the Chapter
relating to Endowed Property.
Article 350 Property
can be sold in divided or undivided shares; or if the property
consists of goods that can be divided they can be sold in parts, or they can be sold
according to sample for delivery after a period.
Article 351 When
goods are of a general nature, i.e. when they can be specified from
numerous units, their sale is only valid when their quantity, quality and description is
given.
Article 352 An
unauthorized sale is not binding unless permission has been given by
the
owner, as has already been stipulated in connection with unauthorized contracts.
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Article 353 If
a specified chattel belonging to a special category is sold and it is found
that the chattel delivered does not belong to such category the sale is void , and if a part
of the chattel sold is not up to quality then that part of the sale is void and the purchaser
also has the right to cancel the remainder of the deal.
Article 354 when
a sale is arranged by means of samples, all the goods sold must be
similar to the sample; otherwise the purchaser has the right to cancel the contract.
Article 355 If
an immovable property is sold as being of a certain area and its found that
it is less than the stipulated size, the purchase may cancel the deal. Also if it is found
that
the area exceeds that laid down, the seller may call off the deal. In both cases, however,
the two parties may come to a mutual agreement in regard to the shortage or the
excess.
Article 356 Anything
which according to common usage and practice should form part
of the object sold or is considered as an attachment to it or which is indicated to be a
part
of this object forms part of the sale and belongs to the purchaser, even if this has not
been
clearly stated in the contract of sale and even if the two parties of the contract were not
aware of the common usage.
Article 357 Anything
that according to common age does not form part of the object
sold will not be affected by the sale unless the contrary has been clearly stipulated in the
contract.
Article 358 Under
the above two Articles if a garden or house is sold the trees of the
garden and the passage and water channel and whatever is attached to the building in
such manner that it cannot be detached without damage belong to the buyer. On the
contrary, crops on land, fruit on trees and young or pregnant animals do not belong to
the
buyer unless this has been stipulated in the contract of sale or is considered as part of
the
object sold according to common usage. In any case, however, the parties can come to
some other agreement
Article 359 If
there is some doubt whether something is included in the sale according
to common usage, then the contract of sale will not cover that thing unless some
stipulation is made to that effect.
Article 360 Anything
that can be sold independently can also be excluded from the
sale.
Article 361 If
after a contract has been made for the sale of some specified object and it
is found that this object does not exist, then the sale is null and void.
Subsection 4
Regarding Consequences of a Sale
Article 362 The
consequences of a regularly conducted sale are as follows:
1The
buyer becomes the owner of the object sold and the seller of its price as soon as
a
sale is effected.
2 A
contract of sale makes the seller responsible for claims in connection with the
ownership of the consideration.
3 A
contract of sale makes the seller responsible for delivery of the object sold.
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4 A
contract of’ sale makes the buyer responsible for payment of the consideration.
Part 1
Regarding Ownership of the Object Sold and Its Value
Article 363 If
in a contract of sale there is an option of cancellation or if a period of
grace is fixed for the delivery of the object sold or for the payment of its price, this will
not prevent transfer (of ownership). Thus if the object of the sale or the consideration
happen to be a specified article and before they are handed over one of the two parties
becomes bankrupt, then the other party will have a right to claim delivery of such
specified article.
If the seller undertakes to introduce a guarantor in connection with any conceivable
claim
in respect of the title of the object of sale and fails to fulfill his undertaking, then the
buyer shall have the right to terminate the contract.
Article 364 In
the case of a conditional sale the ownership becomes binding from the
date of the contract and not from the date on which any option expires. In the case of a
sale in which delivery is a condition, such as a sale of coins against other coins, the
ownership passes from the date of delivery and not from that of the contract.
Article 365 An
invalid sale does not in any way cause ownership to pass
Article 366 Anyone
who, following an invalid sale, takes delivery of any object, must
return to it the owner; otherwise, he will remain responsible for the object itself and any
profits thereon in case they are lost or damaged.
Part 2
Regarding Delivery
Article 367 Delivery
consists in the object sold being placed at the disposal of the buyer
so that he has absolute control of it and can benefit from it in any way he likes. Taking
delivery is effected when the buyer assumes control of the object of sale.
Article 368 The
delivery takes place when the object sold is placed at the disposal of
the
buyer even if the latter has not actually taken physical possession of it.
Article 369 Delivery
is operative in various ways according to the varying nature of the
object sold. It must be done in a way that is accepted as valid according to common
usage.
Article 370 If
parties of a contract fix a time for delivery the ability of the seller to
deliver the object need not exist till this object has to be delivered. The ability to deliver
need not exist at the time of concluding the contract.
Article 371 In
sales where the delivery of the object of sale is dependent on the
permission of the owner, the ability of the delivery is counted on the date that such
permission is granted.
Article 372 If
the seller can only deliver a part of the goods sold, then the sale is valid
for that part but not for the remainder.
37
Article 373When
the goods are already in the buyer’s possession a fresh delivery is not
necessary; the same applies to the consideration of the sale
Article 374 For
taking possession of the goods, no authorization is necessary. The
buyer
can take possession of goods he has bought without any authorization
Article 375 Delivery
should be made at the place where the contract was concluded,
unless another place is required by common usage or unless by a provision in the
contract
of sale a special place has been fixed for the delivery.
Article 376 In
case of delay in delivery of the goods sold or of their price, the party in
default will be forced to make delivery.
Article 377 Either
the seller of the buyer can retain the goods sold or their consideration
until the other party is prepared to deliver his part, unless either the object of sale or the
consideration thereof is agreed to be delivered at a subsequent date in which case either
the object of sale or consideration which has become mature should be surrendered.
Article 378 The
seller who has voluntarily delivered the object of sale before receiving
the price thereof, cannot reclaim the object of sale, except in the case of the cancellation
of the transaction assuming that he has the option to do so.
Article 379 if
the buyer undertakes to give security or a pledge for the consideration
and
fails to carry out this obligation, the seller will have the right to cancel the contract .If the
seller undertakes to introduce a guarantor in connection with any conceivable claim in
respect of the title of the object of sale and fails to fulfill it, then the buyer shall have the
right to terminate contract.
Article 380 In
the case of the bankruptcy of the buyer, if he has retained in his
possession the actual object of the sale, the seller can reclaim it and he can keep the
object sold if it has not yet been handed over.
Article 381 Costs
of delivery, such as transport to the place of delivery and also the
expenses of checking, weighing and so on are at the charge of the seller, but those
connected with the payment of the price are to be paid by the buyer.
Article 382 If
in regard to the expenses of the transaction or the place of delivery,
common usage lays down some rules contrary to those detailed above or if in the
contract
some stipulations to the contrary are made, the common usage or these stipulations
shall
be followed. The seller and the buyer can also modify the above rules by mutual
consent.
Article 383 The
delivery should also contain all the elements which are the parts and
appurtenances of the object of sale.
Article 384 If
under a contract the object sold is fixed in quantity and if on delivery less
than this quantity is handed over, the buyer will have the choice of canceling the contract
or of taking the quantity available on payment of the right proportion of the price. If the
object sold exceeds in quantity the amount fixed in the contract, the excess belongs to
the
seller.
Article 385 If
an object sold is one that cannot be divided without damage, such as a
house or a carpet, and if it is sold as being of a fixed size but on delivery it is smaller or
38
larger in size, then the buyer in the former case and the seller in the latter can cancel the
contract
Article 386 If
in the cases described in the above two Article the deal is cancelled, the
seller must refund, over and above the price any costs of the contract and reasonable
expenses incurred by the buyer.
Article 387 If
the object sold perishes before delivery, even without fault or neglect of
the seller, the sale will be cancelled and the consideration restored unless the seller has
already applied to a magistrate or his substitute for the enforcement of the delivery, in
which case the loss will be borne by the buyer only.
Article 388 If
before delivery the object of sale deteriorates the buyer can cancel the
sale.
Article 389 If
under the circumstances described in the above two Articles the loss of
the object or its deterioration in value is due to an act of the buyer, he will have no claim
on the seller and must pay the consideration of the sale.
Part 3
On Assurance of the Titles
Article 390 If,
after acceptance of the consideration it is established that the object of
sale wholly or partially belongs to another person, the seller shall be held responsible
even though such condition has not been stipulated in the contract.
Article 391 If
it is established that the object of sale wholly or partially belongs to
another person, the seller must return the consideration of the object of sale; and if the
purchaser be ignorant of the existence of the defect, in title, the seller must also take
responsibility for the losses suffered by the purchaser.
Article 392 In
the case mentioned in the preceding Article, the seller must be
responsible for the whole of the consideration he has received in relation to the whole or
part of the object sold, even though after the conclusion of the sale for any reason
whatever there should be a reduction in price.
Article 393 In
respect of the excess which may have accrued to the object of sale
owing
to the acts of the purchaser, the provisions of Article 313 shall apply.
Part 4
On Payment of Consideration
Article 394 The
purchaser must pay the consideration at the agreed time, and at the
place and in accordance with the conditions which are laid down in the deed of sale.
Article 395 If
the purchaser does not the consideration at the agreed time, the seller will
have the right to cancel the transaction in accordance with the arrangements concerning
the option of delaying the payment of the consideration; or, he will have the right to
demand that the judge shall compel the purchaser to pay the consideration.
39
Subsection 5
On Options and Orders Concerning Them
Part 1
On Options
Article 396 Options
are of the following kinds:
1 The
Option of Meeting place.
2The
Option of Animals.
3 The
Option of Conditions.
4The
Option of Delayed Payment of the Consideration.
5The
Option of Inspection and Incorrect Description.
6 The
Option of Loss.
7The
Option of Defect.
8 The
Option of Trickery.
9 The
Option of Sales Unfulfilled in Part.
10The
Option of Unfulfilled Conditions.
First Option
On the option of Meeting place
Article 397 Each
party to the transaction, subsequently to the conclusion of the sale,
while in the place of meeting and before the parties have separated, has the option of
rescinding the sale.
Second Option
On the Option of Animals
Article 398 If
the object of sale is an animal, the purchaser has Article 398 If
the
object of sale is an animal, the purchaser has the option of rescinding the sale until three
days after the conclusion of the sale.
Third Option
On the Option of Conditions
Article 399 It
is possible that the sale may be concluded subject to the condition that
either the seller, or the purchaser, or both of them, or some other person, should have
the
right of canceling the transaction within a specified period.
Article 400 If
the date commencement of the specified period be not mentioned, the
commencement will be reckoned as from the date of the transaction; otherwise the
period
will be as laid down in the agreement of sale.
40
Article 401 If
no period be specified for the Option of Condition both the condition of
option and the sale are null and void. Fourth Option
On the Option of Delayed Payment of the Consideration
Article 402 If
the object of sale is a concrete object, or is of that nature, and if no period
is specified by the two parties for the price or the surrender of the thing sold, the seller
has the option of rescinding the sale when three days have elapsed since the date of the
transaction and neither the seller has delivered the object of sale to the purchaser has
paid
the whole consideration to the seller.
Article 403 If
the seller should, in any way whatever, demand the payment of the
purchase money, and if it appears from the evidence that his intention was to oblige the
purchaser to complete the sale, his option will be extinguished.
Article 404 Should
the seller, within three days from the date of the sale, deliver the
whole of the object of sale to the purchaser, or should the purchaser pay the whole of
the
consideration, the seller will no longer have any right to rescind the contract, even
though
it should happen, in any way whatever, that the object of sale return to the seller or the
consideration to the purchaser.
Article 405 If
the purchaser offers the price and the seller refuses to accept it, he loses
his right to cancel the contract.
Article 406 The
Option of Delay is purely for the seller; the purchaser does not enjoy
this right of option owing to a delay in the delivery of the object of sale
Article 407 The
payment of part of the consideration, or the delivery of same to a
person who is not authorized to receive it, does not avoid the option of the seller.
Article 408 If
the purchaser gives surety for the consideration, or if the seller draws a
bill for the consideration and the bill is honoured, the Option of Delay is void.
Article 409 If
the object of sale is one of those things which spoils deteriorates before
the expiration of three days, the commencement of the option is from the time that the
object of sale is about to spoil or to deteriorate
Fifth Option
On the Option of Inspection and Incorrect Description
Article 410 If
a person should buy a thing from its description only without having seen
it, and should then find on inspection that it does not possess the description which had
been made, he has the option of either canceling the sale or of accepting the object as it
is. Article 411 If
the seller has not seen the thing, whereas the purchaser has seen it,
and
the thing sold possesses qualities which are other than those described, the seller only
shall have the right of cancellation.
Article 412 If
the purchaser has seen a portion of the object of sale, but has only
bought
the rest from description or by way of samples, and finds that that portion is not in
accordance with the description or with the samples, he can either reject all the thing
sold, or accept it all.
41
Article 413 If
one of the parties to the sale has previously seen the goods and makes
the
transaction on the basis of his previous inspection and if it appears, after inspection, that
the said goods do not possess the qualities which they previously had, he shall have the
option of rescinding the transaction.
Article 414In
a sale of merchandise of a general description there is no Option of
Inspection, and the seller must deliver goods which are in accordance with the
description
laid down by the two parties.
Article 415 The
Option of Inspection and Incorrect Description is effected immediately
after inspection.
Sixth Option
On the Option of Lesion
Article 416 Either
of the parties to a transaction if he has suffered (gross loss) may,
after
being appraised of the lesion, cancel the transaction.
Article 417 A
lesion is gross if in accordance with common usage it is not susceptible of
being overlooked.
Article 418 If
the party who has sustained loss knows, at the time of the transaction, the
proper price of the object of sale, he will have no right of cancellation.
Article 419 In
the determination of the extent of the loss, the conditions of sale must
also be taken into consideration.
Article 420 The
Option of Loss is effective immediately after the detection of the loss
Article 421 If
a person who has deceived the other party to the transaction delivers the
difference in price, the Option of Loss does not extinguish unless the deceived party
agrees to receive the difference in price
Seventh Option
On the Option of Defect
Article 422 If
it appears, after the transaction, that the thing sold was defective, the
purchaser has the option either to accept the defective thing together with compensation
for its defect, or to cancel the transaction.
Article 423 The
Option of Defect attaches to the purchaser when the defect was
inherent, but existed at the time of the transaction.
Article 424 An
inherent defect is one which the purchaser, whether this ignorance
arose
from the fact that the defect was really concealed, or whether the defect was evident but
the purchaser did not realize that fact.
Article 425 A
defect which occurs in the thing sold after the sale but before delivery is
to be regarded in the same way as a previous defect
Article 426 The
determination of a defect shall take place in accordance with common
usage and custom, and therefore may vary with time and place.
42
Article 427 If,
in connection with the defect, the purchaser should exercise his option of
receiving compensation therefore, the difference in price which must be given to him will
be decided in the following way:
The true of the thing sold, in undamaged state, will be determined by experts.
If the price of the thing, undamaged, be equal to the price of the thing as fixed by the
parties to the transaction at the time of the sale, the difference between this price and
the
price of the thing in its damaged state will be the amount of compensation.
And if the price of the thing sold in the undamaged state is less or greater than the price
of the transaction, the proportion which the price of the thing in the damaged state bears
to the price undamaged will be calculated, and the seller will retain that proportion of the
price fixed on in the transaction, and will give back the rest to the purchaser by way of
compensation.
Article 428 Should
the experts disagree, the average of their price will be the
authoritative price
Article 429 In
the following circumstances the purchaser cannot cancel the sale; he
may
only take compensation:
1 If
the thing sold is destroyed when the purchaser; or if the thing be transferred to
someone else.
2 If
the thing sold is subjected to change, whether the change is due to the action of the
purchaser or not.
3 If
after delivery of the thing sold, another defect should take place in it, unless it
should have taken place during the time that the purchaser has his special option ; in
that
case no impediment exists to cancellation, and to the return of the object.
Article 430 If
the defect which takes place after delivery arises as the result of a former
defect, the purchaser will also have the right to return the object of sale.
Article 431 Should
there be several things sold as part of the same transaction, in such
way that the price of each several thing is not separately fixed, if certain of them are
found to be damaged, the purchaser must either return all of them and receive back the
price, or keep all of them and take compensation; no discrimination may take place
except with the consent of the seller.
Article 432 Should
the seller in a transaction be a single person, while there are many
purchasers, if a defect appears in the thing sold, one of the purchasers may not singly
return his portion while someone else retains his, except with the consent of the seller;
and if they do not all agree in returning the object of sale, the only right which remains to
each of them is the right of reclaiming compensation.
Article 433 If
in one transaction the sellers are more than one in number, the purchaser
may return the portion of one of them while he retains the portion of another and claims
compensation.
Article 434 If
it appears that the defective thing has in actual fact no proprietory worth
and no price, the sale is void; and if a part of the thing sold has no value, the sale in
43
respect of that part is void and the purchaser has, in respect of the remainder, a right of
cancellation in consideration of the Option of Sales Unfulfilled in part.
Article 435The
option of defect, after it becomes known, should be exercised
immediately by the beneficiary.
Article 436 If
the seller accepts no responsibility for the defect in such way that he can
establish the fact that he was not responsible therefore, or if he sells the object with all
its
defects, the purchaser will have no right to recourse against the seller when a defect
appears; and if the seller makes reservations against one particular defect, he will be
relieved of liability only in respect of that particular defect
Article 437 In
respect of rules relating to defects, the consideration for a thing if that
consideration be something not money, follows the rules as those applying to definite
goods sold.
Eighth Option
On the Option of Trickery
Article 438 Trickery
denotes conduct which causes the other party to the transaction to
be misled.
Article 439 If
the seller practices trickery, the purchaser will have the right to cancel the
sale, and similarly with the price paid by the purchaser, if the latter practices trickery.
Article 440 The
Option of Trickery, after it becomes known, should be exercised
immediately.
Ninth Option
On the Option of Sales Unfulfilled in Part
Article 441 The
Option of Sales Unfulfilled in part arises when the transaction, in
respect of a part of the thing sold, is void for any reason; in that case the purchaser will
have the right to cancel the transaction, or else to accept that part of the thing in respect
of which the transaction was valid, while returning the consideration of that part in
respect of which the transaction was void.
Article 442 When
the Option of Sales Unfulfilled in Part comes into force, the portion
of the consideration which must be returned to the purchaser is calculated as follows
That part of the object of sale which becomes the property of the purchaser will be
valued
alone; the seller will keep that portion of the consideration which bears to the whole
consideration of the purchase the same ratio as the value of the portion mentioned
above
bears to the value of the whole thing sold in its entirety; and the seller must return the
rest
to the purchaser.
Article 443 The
Option Sales Unfulfilled in Part arises when the purchaser, at the time
of the transaction, did not know that the sale was fulfilled in part; but in any case the
consideration will be divided.
44
Tenth Option
On the Option of Unfulfilled Conditions
Article 444The
Option of Sales Unfulfilled Conditions arises in the circumstances
described in Articles 234 to 245.
2On
the Rules Concerning Options in General.
Article 445 All
Options descend after death to the heir of the deceased
Article 446 It
is possible that, an Option of Conditions may arise expressly as being
concerned solely with the person mentioned in the condition; in that case it will not
descend to the heir.
Article 447 If
the condition of option arises for a person who is not one of the parties to
the contract, it will not be transferable by inheritance.
Article 448 It
is possible for forfeit all the options as a condition inserted in the deed of
sale.
Article 449 Cancellation
arises whenever any word is said or any deed done which
indicates cancellation.
Article 450 Any
possessory acts which are by their nature an indication of satisfaction
with the transaction amount in practice to acceptance; for instance, if the purchaser who
has an option, and who knows that he has an option, sells the object or pawns it. Article
451 Any
possessory acts which are by their nature an indication that the contract is
cancelled, amount in practice to a cancellation.
Article 452 If
both of the parties to a contract have an option, and one of them accepts
while the other cancels, the transaction is cancelled.
Article 453 In
regard to Options of Meetingplace,
of Animals and of Conditions, if the
object of sale, after delivery but during the existence of the option of the seller or of the
two parties, is destroyed or becomes defective, the purchaser is responsible; and if the
option is confined to the purchaser, the destruction of the defect incurs the responsibility
of the seller.
Article 454 If
the purchaser lets out the thing sold on hire, and the sale is then
cancelled,
the hire is not valid unless it has been expressly or impliedly agreed that the purchaser is
to have no right of transference of the thing sold either in respect of itself or its profits; in
which case the hire is void.
Article 455 If
after the conclusion of the contract, the purchaser converts to another’s
use either the whole or a part of the object of sale , as for instance if he mortgages it to
some person, the cancellation of the transaction will not affect the rights of the said
person unless a condition has been violated.
Article 456 Every
species of Option can exist in all binding transactions, except the
Option of Meeting, of Animals, and of Delayed Payment, which are confined to sales.
Article 457 Every
sale is irrevocable unless one of the options are established in regard
to it.
45
Section 2
On Conditional Sales
Article 458 In
the contract of sale the transacting parties may make a condition that if
ever the seller, within a specified period, gives back to the purchaser the whole of the
equivalent of the consideration, he may exercise an option of cancellation of the
transaction in regard to the whole of the object of sale; similarly they may make a
condition that if ever he gives back a portion of the equivalent of the consideration, he
may have the object of canceling the transaction in regard to all of or part of the object of
sale; in any case, the right of option depends on the contract made by the two parties .
And if there is no special mention of whether the whole or whether a part of the
consideration has to be returned, the option will not be established unless the whole of
the
price is returned.
Article 459 In
a conditional sale, immediately on completion of the transaction the
object of sale becomes the property of the purchaser, subject to the option held by the
seller. Therefore if the seller does not abide by the conditions fixed between him and the
purchaser regarding the return of the object of sale, the sale will become unconditional ,
and the purchaser will become the unconditional proprietor of the object of sale; and if ,
on the contrary, the seller acts in accordance with the abovementioned conditions, and
asks for the return of the object of sale, it will become the property of the seller from the
moment of cancellation; but the accretions and profits accruing from the object of sale
from the time of the transaction until the time of the cancellation belong to the purchaser.
Article 460 In
a conditional sale, the purchaser may not perform any proprietary act
regard to the object of sale which conflicts with the option, such as conveyance and the
like.
Article 461 If
the purchaser, at the time of the option, refuse to accept the
consideration,
the seller may hand over the consideration to the judge or his deputy and may cancel
the
transaction.
Article 462 If
the thing sold by way of conditional sale becomes transferred to the heirs
of the purchaser by reason of the latter’s death, the right of cancellation by the seller
remains unchanged, in regard to the heirs.
Article 463 If,
in a conditional sale, it becomes apparent that the object of the seller was
in reality not a sale, the rules as to sales will not be applied to it.
Section 3
On Barter
Article 464 Barter
is a transaction whereby one of the parties to the transaction gives a
thing in exchange for another thing received from the other party to the transaction,
without any stipulation that one of the things exchanged should be a thing sold and the
other a consideration therefor.
Article 465 In
barter the special rules relating to sales do not apply.
46
Section 4
On Hire
Article 466 Hire
is a contract whereby the hirer becomes the owner of the profits
resulting from the thing hired . The person who lets out on hire is called the Mujir
(lessor); the person who hires is called the Mustajir (lessee) and the thing which forms
the subject of the hire is called Aainemusta’jareh
(the thing hired).
Article 467 Inanimate
things, animals, or persons may all be the subject of hire.
Subsection 1
On the Hire of Inanimate Things
Article 468 In
the hire of inanimate things the period of hire must be specified, or else
the hire is void.
Article 469 The
period of hire begins from the day arranged between the two parties;
and if in the deed of hire there is no mention of any time for commencement, the period
will begin from the moment of the transaction.
Article 470 It
is an essential condition of a contract of hire that the lessor is able to
deliver the thing hired.
Article 471 In
order that the contract of hire may be valid, it must be possible that the
thing hired may be capable of engendering profits while remaining in its original state.
Article 472 The
thing hired must be a specified thing, and the hire of a thing which is
imperfectly known or which is uncertain is void.
Article 473 It
is not necessary that the lessor should be the proprietor of the thing hired,
but the proprietor, if he wishes to let the property, must be the proprietor of the profits
arising from the thing hired.
Article 474 The
lessee may let the thing hired to another person, unless in the lease
there is a stipulation that he should not do so.
Article 475 The
hire of thing held in undivided shares is allowed, but the delivery of the
thing hired depends on the permission of the partner.
Article 476 The
lessor must deliver the thing hired to the hirer; if he refuses to do so the
lessor will be compelled; and if it proves impossible to compel him, the lessee will have
the option of cancellation.
Article 477 The
lessor must deliver the thing hired in such condition that the lessee is
able to make use of the thing hired in the way desired.
Article 478 If
it is established that the thing hired was, at the time of hiring, defective
the lessee may cancel the lease, or he may accept to hire it for the whole rent in the
same
state that it was in; but if the lessor removes the defect in such way that no loss results
to
the lessee, the latter will have no right of cancellation.
47
Article 479 In
order that a defect shall entail the hirer to cancel the lease, it is
necessary
that it should be a defect which causes a prejudice to the profits or makes them more
difficult.
Article 480 A
defect which occurs after the contract of lease of lease and before any
profit has been realized from the thing hired give rise to an option; and if a defect occurs
during the course of the lease, the option is established for the remainder of the period
of
hire.
Article 481 If
the thing hired, in consequence of a defect, is no longer capable of
realizing profits, and the defect cannot be removed, the lease is void.
Article 482 If
the thing which forms the subject of hire is one of a species of a general
nature, and one unit of the same which was delivered by the lessor is defective, the
lessee
has no right of cancellation, but he can compel the lessor to change the defective unit;
and if it is impossible to change it, he will have the right of cancellation.
Article 483 If,
during the course of the lease, the thing hired is destroyed, in part or as a
whole, the lease, from the time of the destruction, is cancelled in relation to the
proportion of the thing which has been destroyed; and if part of it has been destroyed,
the
lessee has the right of cancellation of the lease in regard to the remainder of the thing
hired, or else to claim only a proportionate reduction in the rent.
Article 484 The
lessor may not, during the period of the lease, introduce changes in the
thing hired, in such a way that changes prejudice the lessee’s purposes in hiring.
Article 485 – If, during the course of the lease, repairs become necessary in the thing
hired, so that if they are delayed, loss will result to the lessor, the lessee may not prevent
the repairs, even though during the whole or part of the time occupied by the repairs he
is
unable to make use of the whole or part of the thing hired; in that case he will have the
right to cancel the lease.
Article 486 The
repairs, and the whole of the expenditure which is necessary in order to
maintain the thing hired in a state in which it is able to earn profits, are the responsibility
of the proprietor, unless other conditions have been agreed upon, or unless the
customary
law of the place provides the contrary; similar rules hold for the instruments and
appliances which are necessary for the m of the thing hired in a state in which it can
earn
profits.
Article 487 if
the lessee exceeds his powers or abuses the thing hired and the lessor is
unable to prevent that conduct, the lessor has the right of cancellation.
Article 488 if
a third person, without claiming any right, should interfere with the lessee
in respect of the thing hired or the profits thereof, and if this takes place before the
lessee
enters into possession, he has the right of canceling the lease; and if he does not cancel
the lease, he has recourse against the interfere in respect of the cessation of the
interference and of the payment of a reasonable equivalent for the part in which he
interfered; while if the interference takes place after the hirer has entered into
possession,
he has no right of cancellation, and can only have recourse against the interferer.
48
Article 489 If
the person who interferes claims any right relating to the thing hired or to
the profits thereof, the interferer may not seize the thing hired from the possession of the
hirer, unless he first proves his right in a suit to which both lessor and lessee are parties.
Article 490 The
hirer must:
1 Treat
the thing hired in a normal way and not use it excessively or abuse it.
2 Use
the thing hired for the purpose which was agreed upon in the lease, or if no
purpose was specified, for the purpose of profit in the way indicated by the
circumstances
and conditions of the lease.
3 Pay
the rent on the terms agreed upon, or if no terms were agreed upon, in cash.
Article 491 If
the kind of exploitation which is mentioned in the lease does not envisage
exclusively the kind of exploitation intended the hirer can use the thing in such way that
it suffers a loss equal to or less than the loss which it would have suffered if it had been
used in the way indicated in the lease.
Article 492 If
the hirer uses the thing hired in a manner other than that mentioned in the
lease, or than that which can be assumed from circumstances and conditions of the
lease,
and it is not possible to prevent that, the lessor will have the right to cancel the lease
Article 493 The
hirer is not a guarantor in respect of the thing hired, in this sense, that if
the thing hired, in the absence of excessive use or negligence on the part of the hirer,
should be destroyed, he will not be responsible, but if the hirer overuses
or abuses the
thing, he is a guarantor even if the prejudice suffered is not the result of his excessive
use
or negligence.
Article 494 The
contract of lease finishes immediately its period expires; and if the hirer
retains the thing hired after the expiry of the lease in his possession without the
permission of the proprietor, the latter will be entitled to a reasonable compensation for
the period of retention, even if the hirer has drawn no profit therefrom; and if he retains
possession with the permission of the proprietor, he must continue the payment of the
rent only if he draws profits therefrom, unless the proprietor has allowed him to retain the
thing gratis.
Article 495If
a guarantee fhas been given in relation to the payment of the rent, the
guarantor will not be liable for the reasonable compensation mentioned in the foregoing
Article.
Article 496The
contract of lease will, on the destruction of the thing hired, be void as
from the date on which the thing is destroyed; and in regard to any departure from the
conditions agreed upon between the lessor and the hirer, the option of cancellation will
become established from the date of such departure.
Article 497The
contract of lease will not become void owing to the death of the lessor
or hirer; but if the lessor is the owner of the profits of the thing hired only for the duration
of his own life, the lease is void on the death of the lessor, and if one of the conditions of
the lease has been that the hirer shall himself take charge of the thing hired, the lease is
void on the death of hirer.
49
Article 498If
the thing hired be transferred to another, the lease remains in force, unless
the lessor has made a condition that he shall have the right of cancellation if the thing is
transferred.
Article 499If
a trustee of an endowed property, in pursuance of the objects of the
endowment, should let the thing endowed, the lease will not be void on the death of the
trustee.
Article 500In
a conditional sale, the purchaser may let the thing sold for the period
during which the seller has no right of option. And if the lease is incompatible with the
option of the seller, he must safeguard the rights of the seller by means of making an
option or the equivalent thereof; otherwise the lease, in so far as it is incompatible with
the rights of the seller, will be void.
Article 501 If
the lease the period is not specified clearly, and if the rent is specified as
a
certain sum per day, per month or per year, a lease for one day, one month or one year
will be valid; and if the hirer retains the thing hired in his possession for periods longer
than those mentioned, and the lessor does not request him to evacuate, the lessor will
be
entitled to the rent at the rate agreed upon according to the time which has elapsed, in
virtue of their mutual agreement.
Article 502 If
the hirer carries out repairs in the thing hired without the permission of
the proprietor, he will not have the right to claim the price of those repairs.
Article 503 If
the hirer, without the permission of the proprietor, erects buildings or
plants trees in the house or the land which he has hired, both the lessor and the hirer will
have the right, whenever he likes, to pull down the building or pull up the trees; in that
case, if the thing hired suffers any damage, the hirer is responsible.
Article 504 If,
in accordance with the lease, the hirer is permitted to erect buildings or
plant trees, the proprietor cannot compel the hirer to pull down those buildings or pull up
those trees; and if after the expiry of the period a building or trees remain in the
possession of the hirer, the proprietor will have the right to claim reasonable rent for the
land; and if they are in the possession of the proprietor, the hirer will have the right to
claim reasonable rent from the proprietor.
Article 505 Installments
of rent which, by reason of the fact that the time for their
payment has not arrived, have not become a liability of’ the hirer, shall not become
immediately payable by reason of his death.
Article 506 In
leases of arable land, any kind of pests which attack cultivated plants are
the responsibility of the hirer, unless other arrangements have been agreed upon in the
lease.
Subsection 2
On the Hire of Animals
Article 507 In
the hiring of animals, the specifications of profit depends on either the
specification of the period of hire, or the description of the distance and the place to
which the rider or the goods have to be transported.
50
Article 508 in
cases where the profit becomes known through the description of the
period of hire, the specification of the rider or the load is not necessary; but the hirer
cannot transport more than the customary quantity; and if the profits should be specified
in the description of the distance and the place, the specification of the rider or the load
is
necessary.
Article 509 In
the hire of animals it is possible to make a condition that if the proprietor
does not transport the load to its destination in a specified time, a specified sum shall be
deducted from the hire. Article 510 In
the hire of animals it is not necessary that the
thing hired should be a particular animal; the specification of the species of animal will
be sufficient.
Article 511 An
animal which is the subject of hire must be used for the definite purpose
which the two parties intended; therefore an animal which was hired for riding cannot be
used for the transport of loads.
Subsection 3
On the Hire of Persons
Article 512 In
the hire of persons, the person who hires is called musta’jir (hirer) and
the person who becomes the subject of the hire is called ajir (hireling); and the price of
hire is called ujrat (wages)
Article 513 The
principal divisions of contracts of hire of persons are the following:
1 The
hiring of servants and workers of all kinds.
2 Contracts
for the employment of persons who contract for the carriage of goods,
whether by land or sea or air.
Part 1
On the Hiring of Servants and Workers
Article 514A
servant or a worker may not become a wage earner
(ajir) except for a
specified period or for the execution of a certain matter.
Article 515 If
a person becomes a wage earner
without the specification of the
termination of the period, the period of hire will be limited to the period in accordance
with which the hire is specified; therefore, if the hire of the wageearner
is laid down as a
certain sum per day, per week, per month, or per year, the period of hire will be limited to
one day or one week, or one month or one year, and after the expiry of the said period
the
hire will cease to have effect; but if the wageearner
after the expiry of the period of his
hire, continues to work and the proprietor keeps him, the wageearner,
in view of the
mutual engagement, is entitled to the same rate as that which was laid down during the
time of the hire between him and the proprietor.
Part 2
On Contracts of Carriage
51
Article 516 Contracts
for carriage whether by land or sea or air, involve the same
engagements in regard to the protection and the care of the things entrusted to the
carrier
as those laid down for contracts of bailment; therefore if excessive usage or abuse takes
place, (that person) shall be responsible for the destruction or the damage to the thing
who received the thing for transporting; and this responsibility shall attach to him from
the date of delivery of the things
Article 517 The
dispositions of Article 509 shall also be applicable to carriage of goods.
Section 5
On Contracts of Agricultural and Harvesting Partnership
Subsection 1
On Agricultural Partnership (Muzara’eh)
Article 518 A
muzara’eh is a contract in virtue of which one of the two parties gives to
the other a piece of land for a specified time so that he shall cultivate it and divide the
proceeds.
Article 519 un
a contract of muzara’eh the share of each one of the cultivators and
agents must be specified by way of undivided shares, as for instance a quarter, or a
third,
etc; and if the share is specified in any other way the rules to a muzara’eh shall not
apply.
Article 520 In
a muzara’eh it is lawful to make a condition that one of the two parties
should give to the other party some other thing in addition to the share from the produce.
Article 521 In
a contract of muzara’eh it is possible that each one of the agents of
production and the seeds should belong to the cultivator or to the agent; in that case the
undivided shares of each of the two parties shall be determined in accordance with an
agreement or with local custom.
Article 522 In
a contract of muzara’eh it is not necessary that the possessor of the land
should be the proprietor; but it is necessary that he should be the proprietor of the profits
of the land, or that in some other manner, such as by way of guardianship etc; he has
the
right of possession of the land.
Article 523 The
land which is the subject of muzara’eh must be capable of being
cultivated in the way desired, although it may need working or water; and if the
cultivation of the lands demands operations which at the time of the contract the agent
was ignorant of, such as the construction of a water channel,
or of a well, etc; he will
have the right of cancellation of the transaction.
Article 524 The
kind of cultivation must be specified in the contract of muzara’eh,
unless it is known from local custom, or unless the contract was for cultivation in a
general sense; in the latter case ,the agent will be entitled to choose the kind of
cultivation
which he prefers
Article 525 The
contract of muzara’eh is an irrevocable contract. Article 526 Either
the agents or the possessor may, in case of the Option of Loss, cancel the contract.
52
Article 527 if,
owing to the loss or water or other causes of this nature , the land
becomes unworthy of cultivation and it is impossible to remove the cause of this defect,
the contract of muzara’eh is cancelled.
Article 528 if
a third person, before the land which is the subject of a muzara’eh is
delivered to the agent, seizes the land, the agent has an option of cancellation; but if he
seizes the land after delivery he has no right of cancellation.
Article 529 A
contract of muzara’eb will not be void owing to the death of the parties or
of one of them, unless a condition has been made that the agent should supervise the
work himself; in that case the contractis cancelled when he dies.
Article 530 If
a person has a life interest in the profits of a property and has given that
property development under a muzara, eh the contract of muzara’eh will be cancelled by
his death.
Article 531 After
the appearance of the harvest resulting from the cultivation, the agent
becomes the owner of his share from that harvest
Article 532 It,
in the contract of muzara’eh, it is laid down that the whole of the harvest
shall belong to the cultivator alone or to the agent alone, the contract, is void.
Article 533 if
a contract of muzara’eh for some reason becomes void, the whole the
harvest becomes the property of the owner of the seed, and the other party, who was
the
owner of the land or of the water or of the labour, is entitled to a reasonable
compensation in proportion to that which he owned.
If the seed was shared between the cultivator and the agent, the harvest and the
compensation will also be divided among them in the same proportions as the seed was
owned.
Article 534f
the agent, during the course of the work, or at the beginning, abandons it,
and if there is no one to carry out the work in his place, the judge, at the demand of the
possessor, compels the agent to fulfill the work, or else continues the work at the
expense
of the agent; and if this is impossible the possessor has the right of cancellation.
Article 535 If
the agent does not cultivate, and the period comes to an end, the
possessor
is entitled to a reasonable compensation.
Article 536 If
the agent does no use proper care in cultivation, and and the harvest
becomes less owing to this fact, or any other loss results for the possessor, the agent
will
become the guarantor for the difference
Article 537 If,
in the contract of muzara’ eh it is laid down that a particular thing has to
be cultivated, and the agent cultivates something also, the muzara’eh is void and the
provisions of Article 533 shall be applied.
Article 538 If
the muzara’eh is cancelled during the period previous to the appearance
of
the harvest, the harvest, belongs to the owner of the seed, and the other party will be
entitled to a reasonable compensation.
Article 539 If
the muzara’eh is cancelled after the harvest, both the possessor and the
agent share the harvest in proportion to the arrangement between them; but, from the
date
of the cancellation, up to the gathering of the harvest, each of them will be entitled to a
53
reasonable compensation for the land, the work, and the implement belonging to him,
payable from the proportional share of the other party.
Article 540 If
the period of the muzara’ eh comes to an end and it happens that the
harvest is not ripe, the possessor has the right to destroy the harvest, or to let it be, after
receiving a reasonable compensation
Article 541 The
agent may take a wage earner
for the cultivation, or take a partner;
but
the consent of the possessor is necessary for transferring the responsibility of the
transaction or the surrender of the land to another person.
Article 542 The
land tax is the responsibility of the proprietor, unless the contrary is
stipulated in the agreement; the rest of the expenses of the land depend upon the
agreement of the two parties, or on custom.
Subsection 2
On Contracts for Irrigation
Article 543 By
a contract for irrigational purposes (musaqat) is meant a transaction
which takes place between an owner of trees and similar things and an agent, in return
for
a specified undivided share of the produce; the work produce includes fruits, leaves,
flowers, etc.
Article 544 In
a case where the contract of musaqat is void or is cancelled, the whole of
the produce is the property of the owner, and the agent will have the right to a
reasonable
compensation.
Article 545 The
provisions relating to muzara’eh mentioned in the preceding
Subsection
will also apply to contracts of musaqat, except that the agent cannot, without the
permission of the owner, hand over the transaction to someone else or enter into
partnership with someone else.
Section 6
On Profit Sharing
Partnership
Article 546 A
profit sharing
contract (mudarabeh) is a contract in virtue of which one
of the contracting parties gives over some capital with the stipulation that the other party
employs it in commerce, and shares the profits arising there from. The owner of the
capital is called the proprietor (malik) and his agent is the manager (mudarib).
Article 547 The
capital must be a sum in cash.
Article 548 The
share of each of the parties, proprietor and manager, in the profits must
be an aliquot part of the whole, such as a quarter or a third, etc.
Article 549 The
shares mentioned in the preceding Article must be specified in the
contract of bailment, unless in accordance with custom they are separately known, and
the fact that they are not mentioned in the contract arises from that reason.
Article 550 The
contract of profit sharing
is a revocable contract.
54
Article 551 A
contract of mudarabah may be cancelled owing to any of the following
reasons:
1 In
case of the death, lunacy, or mental incapacity of one of the parties
2In
case the proprietor becomes destitute.
3 In
case the whole of the capital and its profits disappear.
4 In
case the trade which the parties envisaged becomes impossible.
Article 552 If
in a contract of mudarabah a definite period be laid down for trading, he
specifying of the period does not make the contract binding, but after the expiry of the
period the manager may not make any transaction except with the renewed consent of
the
proprietor.
Article 553 If
the contract of bailment is a general one, i.e. no special form of trade is
laid down, the manager can perform any transaction which may seem to him appropriate
but common practice must be observed in respect of the kind of trade.
Article 554 The
manager may not make a contract of mudarabah with the same capital,
or transfer it to another, without the permission of the proprietor.
Article 555 The
manager must perform acts which, in respect of that kind of trade, are
in conformity with common practice and the custom of the place and the time; but if he
himself performs acts which must, according to common practice, be performed by wage
earners,
he will not be entitled to a wage for them.
Article 556 The
manager is in the position of the trustee, he will not be liable for the
sum given to him in terms of mudarabah, except in cases of positive or negative
negligence.
Article 557 If
a person gives a possession for the purpose of trade, and makes a
condition that the whole of the profits belong to the owner, the transaction shall not be
accounted as a mudarabah, and the manager shall be entitled to a reasonable
compensation, unless it is established that the manager has executed the work
gratuitously.
Article 558 If
a condition has been made that the manger is liable for the capital, or that
the losses resulting from the trade are not be borne by the owner, the transaction is void,
unless a binding condition has been made that the manager shall hand over gratuitously
to
the owner from his own property the amount of loss or destruction suffered.
Article 559 In
current accounts or deposit accounts is it possible that the rules of
mudarabah should apply, regard being paid to the condition mentioned in the last part of
the preceding Article; and interest on the mudarabah may be entered in these accounts.
Article 560 Except
as provided before above, managers are subject to the conditions
and
arrangements laid down by the two parties in their contract.
55
Section 7
On Reward (Ji’ala)
Article 561 A
ji’ala or contract of reward is defined as the engagement of a person to
pay a known recompense, in return for an act, whether the other party is specified or not.
Article 562 In
a contract of ji’ala the person who engages himself is called the ja’il
(rewarder), the other party who does the act is called the amil (agent) and the reward
paid
is called the ja’l (reward).
Article 563 In
a contract of ji’ala the specification of the reward in all particulars is not
necessary; therefore, if a person engages himself to give to whoever finds an article of
his
which he has lost a specified undivided share in it, the contract of ji’ala is in proper form.
Article 564 In
aji’ala, in addition to the fact that it is not necessary to specify the agent,
it is also possible that the act shall also be unspecified and the circumstances of the act
not known.
Article 565 A
contract of ji’ala is a permissive engagement, and until the act has not
been finished, each of the two parties can withdraw; but if the rewarder withdraws during
the course of the act, he must pay to the agent a reasonable compensation for his act.
Article 566 If,
in a contract of ji’ala , the act has several parts, each one of which was
intended from the outset by the rewarder, and the ji’ala is cancelled, the agent will be
entitled to the price agreed upon in proportion to the act which he has done, whether the
cancellation shall come from the side of the rewarder or from that of the agent himself.
Article 567 The
agent will become entitled to the reward when he act which is not in
consonance with reason, is void.
Article 568If
a number of agents get involved in the performance of the job, each will
be entitled to receive his reward in proportion to his contribution.
Article 569The
subject matter of Ji’ala, shall remain in trust with the agent from the
time it falls into possession of the agent until the time when it is passed to the rewarder.
Article 570Ji’ala
shall be null and void for any illegitimate and unlawful act.
Section 8
On Partnerships
Subsection 1
On the Rules Appertaining to Partnerships
Article 571 A
partnership is defined as the combination of the rights of several
proprietors in one single thing by way of undivided shares.
Article 572 A
partnership is either voluntary or compulsory.
Article 573 A
voluntary partnership arises either form any from of contract or from the
acts of the partners, such as when they combine together voluntarily, or when they
accept
56
a property in undivided shares as the result of the acts of certain persons, and in similar
ways.
Article 574 A
compulsory partnership is the combination of the rights of proprietors
arising out of their association with one another, or from inheritance.
Article 575 Each
one of the partners, in proportion to his share, shares in the profits
and
losses, except where one or more persons, in consideration of their services, are allotted
greater shares.
Article 576 The
method of administration of the joint property will depend upon the
conditions laid down between the partners.
Article 577 A
partner who in the contract of partnership is permitted to administer the
property of the partnership is entitled to perform any act which is necessary for the
administration, and will in no case be responsible for losses suffered as the result of his
actions, except in case of negligence or excessive use.
Article 578 The
partners may always withdraw their permission unless their permission
has been given under an irrevocable contract in that case, as long as the partnership
lasts
they have no right of withdrawal
Article 579 If
the administration of partnership is the duty of several partners, in such
away that each one of them is independently permitted to act, each one of them may
singly perform the acts which are necessary for the administration of the partnership.
Article 580 If
it has been agreed among the partners that one of the directors may not
act without another, the director who acts alone and has no written authorization from
the
other partners, will be a guarantor in relation to the partners, even if it is at that moment
impossible for other partners to intervene in the administration.
Article 581 The
operations of each of the partners who act outside their authority or
without authority are considered as unauthorized acts and come under the provisions
relating to unauthorized transactions
Article 582 A
partner who without authority or outside the limits of his authority
operates in connection with property of the partner ship is a guarantor.
Article 583 Each
one of the partners may, without the consent of the other partners,
transfer to a third person the whole or a part of his share
Article 584 A
partner who has possession of property belonging to the partnership is in
the position of a trustee and will not be a guarantor in respect of the destruction or
damage of that property, except in cases of negligence or excessive use.
Article 585 A
partner who acts without authority is responsible to the person with
whom he has traded, and claimants have the right to refer to him only.
Article 586 If
no period is specified for the partnership in the text of a contract of
obligation, any one of the partners may withdraw whenever he wishes.
Article 587 The
partnership will be dissolved in one of the following ways:
1 On
a shareout.
2 If
the whole of the property of the partnership is destroyed.
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Article 588 In
the following cases the partner are not authorized to operate with the
jointly owned
property:
1 On
the expiry of the period of authority, or on withdrawal, if that is possible.
2 On
the death of one of the partners, or when one of the partners becomes
incapacitated.
Subsection 2
On the Division of the Property of the Partnership
Article 589 Each
one of the partners can, whenever he wishes, demand the division of
the jointly owned
property, unless a division, in accordance with this law, is forbidden,
or the partners have bound themselves, in an irrevocable manner, not to divide the
property
Article 590 If
the partners are more than two in number, it is possible that a division
may be made in respect of the shares of one or more of the partners, and the shares of
the
rest may be left undivided
Article 591 If
the partners consent to a division of the property, the division will take
place according to the agreement of the partners, and if the partners cannot come to an
agreement the judge will compel them to divide the property, provided that the division
will not result in any loss; if it does result in loss compulsion is not permissible and the
division must take place according to mutual agreement.
Article 592 If
the division is to the disadvantage of some of the partners, and not to the
disadvantage of others, if the demand for a division comes from a partner who suffers a
disadvantage, the other party will be compelled to agree; if the contrary, i.e. if the
demand comes from one who has not suffered loss, the other party is not compelled to
accept a division.
Article 593 A
loss is considered to be an impediment to division when it represents an
evident depreciation, to such a degree that, in accordance with common practice, it is
not
negligible.
Article 594 If
a jointly owned qanat, or a similar thing, becomes defective and needs to
be cleaned or repaired, and one or more of the partners, to the loss of one or more other
partners, refuses to take part in the cleaning or repairs, the partner or partners who
suffer
loss may refer to the judge; in that case, if the property is not divisible, the judge may, in
order to extirpate the source of dispute and to prevent loss, compel the partner who
refuses, according to the situation, to participate in the cleaning or the repairs, or to hire
or sell his share.
Article 595 If
a division will involve the disappearance, as a property, of the whole a
part of’ the joint property or of the shares of one or more of the partners, division is
forbidden, even if the partners agree thereto.
Article 596 If
the jointly owned
consists of several units, a compulsory division of
some of those units does not necessarily involve the division of the rest of the property.
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Article 597 The
separation of a private property from an endowed property is
permissible, but the division of an endowed property among the beneficiaries is not
permissible.
Article 598 The
arrangements for a division are as follows:
If the joint property is such that it must be divided itself, it will be divided up in
proportion to shares of the partners; and if it be such that it can be valued, it will be
apportioned according to its price; and after the division or the valuation, if the parties
cannot come to an agreement as to their shares, the matter will be decided by lot.
Article 599 The
division, after it has taken place in proper form, is obligatory, and none
of the partners can dissociate himself from it without the consent of the others.
Article 600 If,
in the portion of one or more of the partners, a defect may appear of
which he or they did not know at the division the partner or partners concerned have the
right to set aside the division.
Article 601 If,
after the division, it becomes apparent that the division has taken place
under a mistake, the division is void.
Article 602 If,
after the division, it becomes apparent that a definite quantity of the
property divided belonged to someone else, the division is valid if, after the division, the
property belonging to another exists in each of the divided shares in the same
proportion;
otherwise it is void.
Article 603 A
path or a watercourse belonging to any portion belongs, after the division,
to that same portion.
Article 604 A
person who has rights over the property of another cannot prevent a
division of that property; but his rights will remain the same after the division as they
were before.
Article 605 If
the portion of one of the partners is a water channel or a path over the
portion of another partner, the right of passage of water or the use of the path shall not
disappear after the division, unless such a disappearance shall have been upon; and
other
rights over the property of another follow the same rule.
Article 606 If
the estate of a deceased person be divided up before the payment of his
debts, or if after the division it becomes apparent that the deceased was liable for a debt,
the creditor must refer to each of the heirs in proportion of his portion; and if one or more
of the heirs are unable to pay, the creditor may refer to the other heirs for the settlement
of the portions of the destitute heir or heirs.
Section 9
On Deposit
Subsection 1
On General Principles
59
Article 607 By
Deposit is meant a contract whereby one person entrusts a thing
belonging to him to another in order that the latter should retain it for him free of charge,
The person who deposits is called the mudi (depositor) and the person who receives the
deposit is called the mustaudi or the amin (trustee).
Article 608 In
a Deposit the acceptance of the trustee is necessary, thought it maybe
shown by an act.
Article 609 A
person may deposit a thing who is the owner or the representative of the
owner; or who is, on behalf of the owner, explicitly or implicitly authorized by the owner.
Article 610 In
a Deposit the two parties must have capacity for a transaction, and if a
person accepts a thing on deposit from another person who has no capacity for a
transaction, he must return the thing to the legal guardian of that person, and if the thing
depreciates or disappears in his possession he is a guarantor.
Article 611A
Deposit is a revocable contract.
Subsection 2
On the Engagements of the Trustee
Article 612 The
trustee must preserve the deposited thing in the way that the depositor
laid down; and if there was no specific stipulation for the manner in which the thing is to
be preserved, he must keep it in the way which is usual for that thing; otherwise he is a
guarantor.
Article 613 If
the owner has laid down a way for the preservation of the thing deposited,
and the trustee considers it necessary that way should be changed in order to preserve
the
thing, he may change it, unless the owner has specifically forbidden any change; in that
case he is a guarantor.
Article 614A
trustee is not a guarantor in respect of the destruction or the depreciation
of the thing deposited with him, unless in case of negligence or excessive use.
Article 615A
trustee in his position as a protector is not responsible in respect of events
the prevention of which is beyond his power.
Article 616 If
the return of the thing deposited be requested, and the trustee refuses to
return it, the rules as to trustees will case to apply to him from the date of his refusal, and
he will become a guarantor in respect of any defect or depreciation which supervenes in
the thing deposited, even though that defect or depreciation does not arise from an act
of
his.
Article 617 The
trustee cannot exercise any possessory rights over the thing deposited
except such as rise in protecting it; nor can he in any way make a profit from, except with
the express or implied leave of the depositor; otherwise he is a guarantor.
Article 618 If
the thing deposited in entrusted to the trustee in a closed box or a sealed
letter, he has no right to open it; otherwise he is a guarantor.
Article 619 The
trustee must hand back exactly the same thing as he received.
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Article 620 The
trustee must give back the thing deposited in the same state as the
thing
was at the time of giving it back; and he is not a guarantor in respect of the defects
which
may have accrued therein.
Article 621 If
the thing deposited is taken by force from the trustee and if he has
received a payment or something else in its place, he must give to the depositor that
which he received in exchange, but the depositor is not obliged to accept it and he has
the
right to refer direct to the person who took the thing away by force.
Article 622 If
the heir of the trustee destroys the thing deposited he is responsible for
supplying the equivalent or the price or the same, even if he did not know that the thing
was. a deposit.
Article 623 The
profits resulting from a thing deposited belong to the owner.
Article 624 The
trustee must return the thing deposited only to the person from whom
he received it, or to his legal representative, or to a person who has authority to receive
it;
and if he wishes, from force of circumstances, to give it back but has no means of
approach to a person entitled to receive it, he must give it back to a judge.
Article 625 If
it is established that the thing deposited belongs to another person other
than the depositor, the trustee must return it to the true owner, and if the owner is
unknown, the rules relating to things of unknown ownership will apply.
Article 626 If
a person deposits a thing, the deposit will become void at the death of the
depositor, and the trustee cannot return it to anyone except to the heirs.
Article 627 If
there be more than one heir, and if they do not agree among themselves
about the thing, the thing deposited must be returned to the judge.
Article 628 If
a change takes place in the situation of the depositor such as for instance
if he becomes a ward, the contract of deposit is cancelled, and the thing deposited
cannot
be returned except to the person who has the right to administer the effects of the ward.
Article 629 If
a thing belonging to a person who has become incapacitated is deposited,
that thing must be given back to him when he is no longer an incapacitated person.
Article 630 If
a person makes a deposit of a thing in his capacity as guardian or tutor,
that thing after he ceases to possess that capacity, must be returned to its owner, unless
the owner continues to be incapacitated; in that case the thing is returned to the
subsequent guardian or tutor.
Article 631 If
a person is in possession of a thing in a capacity position , in respect of
that thing, equivalent to that of a trustee, he is the same as a trustee; therefore, a tenant,
in
relation to the thing hired, or a guardian or tutor in relation to the minor’s property or to
their ward, and the like , are not guarantors, unless in cases of negligence or excessive
use; and if the owner is entitled to have the thing returned to him, the possessor, from
the
moment of the owner’s application and the possessor’s refusal to return although he
could have done so, will be responsible in case of destruction of the thing or of any kind
of damage or defect, even though it be not the consequence of his own act.
Article 632 Caravansarai
properties, hotel keepers, bath keepers and similar persons
are
responsible in respect of the effects and good and clothes of persons who enter those
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places only if those effects and goods and clothes are deposited with them, or if in a
accordance with local custom those effects are in the position of being on deposit.
Subsection 3
On the Engagement of the Depositor
Article 633 The
depositor must give to the trustee the expenses which he has incurred
in
the preservation of the thing deposited.
Article 634 If
the return of the thing deposited necessitates any expenditure , the
depositor must pay.
Section 10
On Lending
Article 635 Lending
is a contract whereby one of the parties gives the other party
permission to derive profit, gratis, from a thing belonging to the former.
The person who gives is called the lender (mu’ir) and the person who receives is called
the borrower (musta’ir)
Article 636 The
lender, in addition to having capacity, must be the owner of the profits
of the thing which he gives on loan, even though he be not the owner of the thing itself.
Article 637 Any
thing which is capable of yielding a profit while continuing its own
existence unchanged is capable of being loaned.
The profit which is envisaged in lending is a profit which is lawful and reasonable.
Article 638 Lending
is a revocable contract, and is cancelled by the death of either of
the parties.
Article 639 If
the thing lent possesses defects which cause loss to the borrower, the
lender will not be responsible for the losses incurred unless he is regarded as the cause
of
the defect by local custom.
The same rule also applies in the case of a depositor or a lessor etc.
Article 640 the
borrower is not a guarantor as to the destruction or the depreciation of
the thing lent, unless in case for negligence or excessive use.
Article 641 The
borrower is not responsible for a defect arising from using the thing
lent, unless he has used the thing in a way not permitted or if lending was unconditional,
if he has used it in a way not in accordance with common usage.
Article 642 If
a condition of guarantee has been imposed on the borrower, he will be
responsible for any loss or defect, even though that loss or defect be not related to any
act
of his.
Article 643 If
the borrower has also had to furnish guarantee for defect resulting from
usage in general, be will be a guarantor for these defects too.
62
Article 644 In
lending gold or silver, whether coined or not, the borrower is a guarantor
even if he has not been subjected to a guarantee, and even if there has been no
negligence
of excessive use.
Article 645 In
the return of the thing lent the provisions of Articles 624 and 626 up to
630 must be observed.
Article 646 The
expenditure necessary for deriving a profit from the thing lent is the
responsibility of the borrower, and the expenses of upkeep of the thing follow the rules of
common usage and custom, except as provided in special agreements.
Article 647The
borrower cannot in any circumstances hand over the thing loaned to the
possession of another, except with the permission of the lender.
Section 11
On Loans
Article 648 A
Loan is a contract where by one of the two parties surrenders to the
ownership of the other party a definite portion of his property, so that the other party may
return to him what is equivalent thereto in respect of quantity, kind and description, and if
that party declines to give back the equivalent, he gives the price of the same on the day
of payment.
Article 649 If
a property which is the subject of a loan, is destroyed or becomes
defective after having been delivered the loss is to be made good from the property of
the
borrower.
Article 650 The
borrower must return a thing similar to the thing He has received, even
though it may have appreciated or depreciated.
Article 651 If
a specified period of time is fixed for the payment of the debt in a binding
form, the lender cannot claim the settlement of his loan before the expiry of the term.
Article 652 At
the time of the lender’s claim for payment, the judge orders a delay or
for payment by installments on behalf of the debtor, according to the circumstances
Article 653Repealed
by the Amendments of November 1991
Section 12
On Gambling and Betting
Article 654 Gambling
and betting are void transactions and no action based on them
will lie. The same rule applies to all engagements which arise out of illegal transactions.
Article 655 Betting
is permitted in races of riding animals and also in shooting matches
and in fencing the provisions of the foregoing Article do not apply to them.
63
Section 13
On Agency
SUBSECTION 1
On General Principles
Article 656 An
agency is a contract whereby one of the parties appoints the other as his
representative for the accomplishment of some matter.
Article 657 The
establishment of agency relationship is subject to the acceptance of the
agent.
Article 658 An
agency comes into being however after and acceptance are indicated
whether by word or conduct.
Article 659 An
agency may be either gratuitous of in return of remuneration.
Article 660 An
agency can be of a general nature, and for the whole of the affairs of the
principal, or limited to a certain matters.
Article 661 If
the agency is a general one, it will be concerned only with the
administration of the property of the principal.
Article 662 An
agency must not be given except for a matter which the principal
himself is entitled to act, an agent must be a person who has the capacity to execute
that
matter.
Article 663 An
agent cannot execute a matter which exceeds the limits of his power of
attorney.
Article 664 An
attorney for litigation purposes is not an agent empowered to receive
what is due, unless there exist certain circumstantial evidence there for, similarly, an
agent appointed to collect something to which his principal is entitled will not be an
attorney for litigation purposes.
Article 665 An
attorney in a sale I is not an agent for the receipt of the purchase price,
unless there is indisputable proof thereof.
Subsection 2
On the Duties of the Agents
Article 666 If
the principal suffers loss owing to the fault of the agent, and if the agent is
by common custom considered to be the cause of the loss, he will be responsible.
Article 667 The
agent must, in his handlings and performances act in the interests of
his
principal, and must not exceed the limits of the authority which the principal has
explicitly given him, or the authority which is inferred by custom, usage, and
circumstantial evidence.
Article 668 The
agent must give to his principal an account of the time of his agency,
and must give up to him that which he has received for his principal.
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Article 669 If
two or more agents are appointed for the execution of one matter, no one
of these agents may participate in that matter without the other or others; unless each of
them has an independent agency; in that case each one of them can singly do the work.
Article 670 If
two persons are agents in association with one another, and one of them
dies, the agency of the other becomes void.
Article 671 An
agency for a certain matter involves an agency for the preliminaries and
essential preparations for that matter, unless it be expressly stated that the agency does
not apply to them.
Article 672 An
agent in a matter may not give an agency to any one else in that matter,
unless he is expressly or impliedly an agent entitled to select a sub agent.
Article 673 If
an agent who has not the right of subscription hands over to a third
person
the execution of the matter for which he has the agency, both the agent and the third
person will be responsible to the principal for the losses which they are considered to
have caused.
Subsection 3
On the Duties of the Principal
Article 674 The
principal must execute all the engagements which the agent, within the
limits of his powers, has undertaken.
In respect of that which has been done outside the limits of the powers of the agent, the
principal will be under no obligation whatever, unless he expressly or impliedly permits
the irregular actions of his agent.
Article 675 The
principal must pay the whole of the expenditure incurred by the agent
in the execution of his agency, and also the remuneration of the agent, unless other
arrangements have been made in the contract of agency.
Article 676 The
fee of the agent will be in accordance with the agreement between the
two parties; and if there has been no agreement relating to the fee or its size, it will be in
accordance with local practice and custom; if there is no recognized custom; the agent is
entitled to a reasonable remuneration.
Article 677 If
it is not expressly stated in the contract of agency whether the agency is
gratuitous or for fee, the presumption is that it was for a fee.
Subsection 4
On the Various Ways of Ending an Agency
Article 678 The
agency can be dissolved in the following ways:
1 By
dismissal by the principal.
2By
resignation of the agent.
3 By the death or insanity of the principal of the agent.
65
Article 679 The
principal can, whenever he desires, dismiss the agent, unless a
condition has been made in the course of an irrevocable contract as to the agency of the
attorney or the impossibility of his dismissal
Article 680 Everything
which the agent has done before the news of his dismissal
reaches him, in the limits of his powers, is valid.
Article 681 After
the agent has resigned, he may continue to take steps in pursuance of
the agency as long as it is evident that the principal continues to give him permission.
Article 682 The
fact that the principal becomes incapacitated annuls the agency except
in respect of things in which incapacity does not impede there being an agency;
similarly,
the incapacity of the agent annuls the agency, except where incapacity does not impede
the steps necessary for the agency.
Article 683 If
the substance of the agency disappears, or the principal performs himself
that he assigned to the agent to do, or ma general way does that which is contrary to the
agency, as for example if he sells himself that for which he gave an agency for agent to
sell, the agency is void.
Section 14
On Contracts of Guarantee
Subsection 1
On General Considerations
Article 684 A
contract of guarantee is defined as such that a person takes upon himself
the responsibility of a property which forms an obligation upon another person.
The person who accepts the obligation is called the zamin
(guarantor); the other person is termed “mazmunun Ia” (the beneficiary), and the third
person is termed “mazrnunun anh” (he for whom the guarantee is given) or the, original
debtor.
Article 685 In
a contract of guarantee the consent of the original debtor is not an
essential condition.
Article 686 The
guarantor must have capacity to transact.
Article 687 It
is permissible to be a guarantor of an incapacitated or deceased person.
Article 688 It
is possible for the guarantor to furnish a guarantee.
Article 689 If
more than one person become guarantors for a man, the guarantee of the
person whom the beneficiary accepts is the valid guarantee.
Article 690 In
a contract of guarantee it is not essential that the guarantor should be
solvent; but if the person to whom the guarantee is given is ignorant, at the time of the
guarantee, of the lack of means of the guarantor, he can cancel the contract; but if the
guarantor, after the contract becomes destitute, the beneficiary shall have no option.
66
Article 691 A
guarantee in respect of a debt the cause of which has not yet arisen is
void.
Article 692 In
a matured debt it is possible for the guarantor to specify a period for the
payment; and similarly for an immature debt he can engage to pay it immediately.
Article 693 The
beneficiary can in a contract of guarantee require a pledge from the
guarantor, even though no security was taken in the original debt.
Article 694 It
is not essential for the guarantor to know the amount, the details, and the
conditions of the debt which he guarantees; hence, if a person becomes the guarantor of
a
debt of a person without knowing what the amount of it was, the contract of guarantee is
valid; but a guarantee of one of several debts, in a doubtful manner, is void.
Article 695 It
is not necessary for the guarantor to have complete knowledge about the
person to whom the guarantee is given or the original debtor.
Article 696 It
is possible to guarantee any debt, even if there is a termination clause
therein.
Article 697 It
is possible to guarantee either the seller or the purchaser against the
possible claims by a third party in connection with the ownership of the object of sale or
the consideration as the case may be.
SUBSECTION 2
On tile Effect of a Guarantee on the Guarantor and the Beneficiary
Article 698 After
the guarantee is validly made, the obligations of the original debtor is
discharged and the obligation of the guarantor towards the original creditor comes into
force.
Article 699 To
make a guarantee dependent upon certain factors, as for instance to
indicate that, if the debtor does not pay then I shall stand as guarantor’ is void but it is
possible to make execution of guarantee dependent upon certain factors.
Article 700 A
guarantee which lays down conditions concerning the prerequisite
of
guarantee, as for instance if the guarantor undertakes that if the person guaranteed is in
debt the guarantor will guarantee him, is not void.
Article 701 A
guarantee is an irrevocable contract, and the guarantor or the beneficiary
cannot cancel it, unless in case the guarantor becomes indigent as laid down in Article
690; or there be a right of cancellation in respect of the debt which is guaranteed; or if
the
conditions of the contract are not adhered to.
Article 702 If
the guarantee specifies a period, the person guaranteed cannot claim his
due from the guarantor before the expiry of the period, even if the debt has matured.
Article 703 In
a guarantee of immediate payment the beneficiary has the right to claim
his due, even though the original debt has not been matured.
Article 704 A
general guarantee is a sight guarantee, unless it becomes evident, from
proofs, that it relates to a period.
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Article 705 A
delayed guarantee becomes a sight guarantee on the death of the
guarantor.
Article 706 – Repealed.
Article 707 If
the claimant releases the guaranteed person from his obligation the
guarantor will not be released, unless the object of the claimant is to abolish the debt
altogether.
Article 708 A
person who is a guarantor to defend the claims of a third party concerning
the ownership of the object of sale is released on the cancellation of the contract of sale
on the ground of mutual consent or by exercise of an option.
Subsection 3
On the Effects of a Guarantee as Between the Guarantor and the Guaranteed
Debtor
Article 709 The
guarantor has no right of recourse against the guaranteed debtor
except
after the payment of the debt; but he can have recourse if the guaranteed debtor has
engaged to obtain a release for him (the guarantor) within specified time, and that time
has elapsed.
Article 710 If
the guarantor, with the consent of the beneficiary assigns the payment of
the debt to another, and if that person agrees to pay it, it is as though he (the guarantor)
has paid the debt, and he has a right of recourse against the guaranteed debtor; the
same
rule shall be applicable when the beneficiary makes such assignment.
Article 711 If
the guarantor pays the debt, and the guaranteed debtor pays it again, the
guarantor will not have recourse against the beneficiary, but must refer to the
guaranteed
debtor, and the latter can take back from the beneficiary what he paid him.
Article 712 If
the beneficiary dies, and the guarantor becomes his heir, he has a right of
recourse against the debtor.
Article 713 If
the guarantor gives to the beneficiary less than the debt, he cannot claim
from the debtor more than he has given, even if he has compromised for less than the
amount of the debt.
Article 714 If
the guarantor gives to the beneficiary more than the debt, he has no right
to claim more, unless he has given it with the permission of the debtor.
Article 715 If
the debt is payable at the end of a term, and the guarantor pays it before
the due date, he cannot claim from the debtor as long as the period of the debt is still
unexpired.
Article 716 If
the debt is payable at sight, whenever the guarantor pays it, he can refer
to
the debtor, even though the guarantee was for a period which had not then elapsed,
unless
the debtor has given permission for a deferred guarantee.
Article 717If
the debtor pays the guarantor is released, even though the guarantor may
not have given the debtor permission to pay.
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Article 718 If
the beneficiary releases the guarantor from the debt, the guarantor and
the
debtor are both realized.
Article 719 If
the beneficiary releases the guarantor, or if another pays the debt
gratuitously, the guarantor has no right of recourse against the debtor.
Article 720A
guarantor who guarantees with the object of doing a spontaneous
benevolent act has no right of recourse against the debtor.
Subsection 4
On the Effect of a Guarantee on More than One Guarantor
Article 721 If
several persons give a guarantee to a person in respect of a debt by way
of
pro rata, the guaranteed creditor has the right of recourse against each one of them to
the
extent of his share only; and if one of the guarantors pays the whole of the debt he can
refer to each one of the other guarantors who agreed to the payment, to the extent of his
share.
Article 722 A
guarantor of a guarantor has no right of recourse against the original
debtor, but must refer to the person whom he has guaranteed; and in the same manner
every guarantor has recourse against the creditor, and so on up to the original debtor.
Article 723 It
is possible that a person renders himself responsible for the payment of
the debt of another by virtue of an irrevocable contract; in that case the fact that the
obligation is conditional does not render it void, as for instance when a person incurs an
obligation to pay the debt of a debtor on condition that the debtor fails to pay.
Section 15
On Assignment
Article 724Assignment
is a contract in virtue of which the claim of a person from a
debtor is transferred to a third party.
The debtor is called, “muhil” (assignor), the creditor muhtal (assignee) and the third party
is called “muhalun ‘alaih” (third party assignee).
Article 725 The
assignment does not become definite except with the consent of the
assignee and third party assignee.
Article 726 If,
in regard to an assignment (haveleh), the debtor (assignor) is not
indebted to the creditor (assignee), the provisions applicable to an assignment will not
apply.
Article 727 It
is not necessary, for the validity of the assignment, that the third party
assignee should be indebted to the assignor, In that case, the third party assignee after
his
accepting, is in the position of a guarantor.
Article 728 The
solvency of the third party assignee is not a necessary condition for the
propriety of the assignment.
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Article 729 If,
at the time of the assignment, the third party assignee was insolvent and
the assignee was ignorant of his insolvency, the assignee can cancel the assignment
and
have recourse against the assignor.
Article 730 After
the assignment is effected, the obligation which was incumbent upon
the assignor in respect of the assigned debt is discharged, and the obligation attaches to
the third party assignee.
Article 731 If
the third party assignee was not indebted to the assignor, he may, after
paying the sum transferred, have recourse against the assignor for the sum paid.
Article 732 An
assignment is a binding contract, and neither the debtor, nor the
creditor,
nor the third person can cancel it, except in accordance with Article 729, or when the
condition has been made that an option of cancellation should exist.
Article 733 If,
in a sale, the seller makes an assignment providing that the purchaser
should pay the price to some person, or if the purchaser makes an assignment
empowering the seller to receive the price from someone, and the nullity of the sale is
established, the assignment is null; and if the creditor has received the price he must
give
it back ;but if the sale becomes cancelled in consequence of can option or mutual
consent,
the assignment is not null, but the third person is discharged, and the seller or the
purchaser can have recourse against one another.
The provisions of this Article will apply to other contracts also.
SECTION 16
On Personal Surety (Kifalat) (Bailbond)
Article 734A
“kifalat” is a contract by virtue of which one of two parties engages, with
the party, to produce the presence of a third person, when summoned.
The person who engages is called “kafil”; the third person is called a “makful” (the object
of personal guarantee), and the other party is called “makfulun lah” (beneficiary).
Article 735 A
“kifalat” takes place with the consent of the “kafil” and of the “makfulun
lah” (beneficiary).
Article 736 It
is not necessary, for the validity of the “kifalat”, for the “kafil’ to know
that there exists a lawful claim incumbent upon the “makful’; the existence of a claim to a
right on the side of the “makfulun lah” is sufficient, even if the “makful’ denies it.
Article 737 – A “kifalat” may be absolute or temporary; if it is temporary, its period must
be specified.
Article 738 It
is possible for another person to become the “kafil” of a “kafil’
Article 739 In
an absolute “kifalat”, the “makfulun lah” may, whenever he desires,
request that the “makful’ be produced; but in a temporary “kifalat” he has no right of
claim before the end of the term.
Article 740 The,
“kafil” must produce the “makful” at the time and the place which he
has promised ; or else he must incur the responsibility for the right which is proved to be
incumbent on the
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“makful’.
Article 741 If
the “kafil” has engaged to surrender property if the “makfui” does not
appear, he must act in accordance with his engagement.
Article 742 if
in the “kifalat” no place has been specified for the surrender of the
“makful”, the “kafii” must hand over the “makful” in the place where the contract was
made, unless the contract envisages another place.
Article 743 If
the “makful” is absent, a delay will be accorded to the “kafil” sufficient to
enable him to produce the “makful”.
Article 744 If
the “kafil” hands over the “makful” at a time or in a place other than that
which was laid down, or contrary to the conditions which he made, it is not incumbent
upon the “rnakfulun lah” to accept this; but if he agrees, the “kafil’ is discharged;
similarly, if the “makfulun lah” requests the surrender of the “makful” in a way contrary
to that which was laid down by the two parties, the “kafil” is not obliged to accept.
Article 745 Any
person who abducts a person from the control of the one entitled to
control him, or his lawful deputy, without his consent, is in the position of a “kafil”, and
must produce that person; if not, he must take responsibility for the due which are
proved
to attach to him.
Article 746 The
“kafil” will be discharged in the following circumstances:
1 If
he produces the “makful” in the manner agreed upon.
2 if
the “makful” himself appears at the appointed time.
3 If
the obligation of the “makful” is discharged in any way from that which the
“rnakfulun lah” claimed.
4If
the “makefulun lah” gives a discharge to the “kafil”.
5 If
the claim of the “makfulun lah” becomes in any way transferred to another person.
6 If
the “makful” dies.
Article 747 If
the “kafil” produces the “makful” in accordance with the conditions
agreed upon, and the “makfulun lah” refuses to take delivery of him, the “kafil” will be
discharged after reference to witnesses or to the judge.
Article 748 The
death of the “makfulun Iah” will not involve the discharge of the
“kafil”.
Article 749 If
one person becomes a “kafil” for a person in relation to several persons,
he will not be discharged as far as the others are concerned by the delivery of the
person
to one of them.
Article 750 If
a person be the “kafil” of a “kafil”, and another person be his “kafil”, and
so on, each “kafil” must produce the “makful” pertaining to him; whoever of them
produces the original “makful” is discharged together with all the others; and whoever of
them becomes discharged by reason of any of the reasons mentioned in Article 746, the
“kafils” who come after him are discharged too.
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Article 751 If
the “kifalat” is with the permission of the “makful”, and the “kafil”, not
being able to produce the “makful” pays whatever penalty attaches to him, or if he pays
a
penalty with his permission he can have recourse against the “rnakful” and receive back
what he has paid; but if neither was with the consent of the “makful”, he will have no
right of recourse.
SECTION 17
On Settlement (Compromise)
Article 752 A
settlement of account is possible either in the case of the adjustment of
an
existing dispute, or for avoidance of a possible dispute, or in the case of a transaction
and
the like.
Article 753 In
order that the settlement is in proper form, the two parties must have
capacity for the transaction and must have an interest in the subject of the settlement.
Article 754 Every
settlement is effective, except that which relates to an unlawful
matter
Article 755 A
settlement is also possible even when the claim is denied; therefore, a
request for a settlement is not to be regarded as a confession of indebtedness.
Article 756 Civil
claims which have arisen as the result of a crime may also become the
subject of a settlement.
Article 757 A
settlement without a recompense (consideration) is also lawful.
Article 758 A
settlement made in respect of a transaction, though it provides the final
result of the transaction which it replaces, does not include the special conditions and
attributes of the transaction . Therefore, if the subject of settlement is a definite object
given in return for a consideration, its results will be the result of a sale, without the
execution of the special conditions and rules appertaining to a sale.
Article 759 A
settlement does not involve a right of pre emption,
even though it takes
the place of a sale.
Article 760 A
settlement is an irrevocable contract, even though it take the place of
revocable contracts; and it does not lose validity except in circum stances of cancellation
through the exercise of an option or mutual consent.
Article 761 A
settlement which arises from a dispute or is based on clemency is final as
far as .the two parties are concerned, and neither of them can cancel it, even if there be
a
claim of gross loss except in a case of non compliance
with a condition, or when an
option of cancellation has been included as a condition.
Article 762 If
a mistake has occurred in the circumstances during the negotiation of the
terms of settlement, or in connexion with the object of settlement, the settlement is void
Article 763 A
settlement of account under circumstances of reluctance is not
enforceable
Article 764 Trickery
in a settlement is a justification for an option of cancellation.
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Article 765 A
settlement based on a void transaction is void; but a settlement in a claim
arising out of the cancellation of a transaction is valid
Article 766 If
the two parties bring to an end, in a general settlement the whole of their
mutual claims whether existing or potential, in the form of a settlement, all the claims are
accounted as being included in that settlement, even if the cause of claim was unknown
when the settlement was made, unless the settlement did not include that claim, in
accordance with evidence.
Article 767 If,
after the settlement, it becomes known that the subject of the settlement
did not exist, the settlement is void.
Article 768 In
a contract of settlement it is possible that one of the parties, in return for
the share which he receives, should engage himself to pay an alimony for a specified
period each year or each month. This engagement may involve alimony for the other
party to the settlement or to a third party or parties.
Article 769 In
an engagement such as that specified in the previous Article, whoever
derives profit from the settlement, there may be a condition that after the death of the
beneficiary the profits may go to his heirs.
Article 770 A
settlement which takes place in accordance with the previous Article Is
not cancelled by the bankruptcy or the indigence of the person who undertook the
engagement, unless there was a condition to that effect.
SECTION 18
On Pledges (Mortgage)
Article 771 A
pledge is a contract whereby a debtor gives a property to the creditor as a
security.
The person who gives the pledge is called, rahin’(mortgagor), and the other party the
,murtahin’ (mortagagee).
Article 772 The
property which is pledged must be transferred to the possession of the
creditor, or to that of a person agreed upon by the two parties; but it is not a necessary
condition for the validity of the transaction that the property should remain in that
possession.
Article 773 No
property which is incapable of being alienated or transferred legally may
be the subject of the pledge.
Article 774 A
pledged thing must be a definite object, and the pledging of a debt or a
profit is void.
Article 775 A
pledge may be given for any property which is owed, even though a
contract which gives rise to the debt be subject to cancellation.
Article 776 It
is possible for one person to give a thing in pledge in respect of two or
more debts which he owes to two or more persons. In that case the creditors must agree
among themselves as to who shall have possession of the thing; similarly it is possible
for
two persons to pledge a thing to one person in return for a claim which he has on them.
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Article 777 In
the course of a contract of pledge, or in accordance with a separate
contract, it is possible for the debtor to make the creditor his attorney empowering him to
ensure that if , at the time appointed , the debtor does not pay his debt, the creditor will
recover from the object pledged or from its price the amount of his claim; and it is also
possible that he should arrange that the attorneyship mentioned above should continue
after the death of the creditor, vesting in his heirs; and finally it is possible that the
attorneyship should be given to a third person.
Article 778 If
it is laid down as a condition that the creditor has no right to sell the thing
pledged, it (i.e. the condition) is void.
Article 779 If
the creditor has no authority for the sale of the thing pledged, and the
debtor also is not ready to sell it or to pay the debt, the creditor refers to the judge who
will compel a sale or oblige the debtor to pay the debt in another way.
Article 780 The
creditor who holds the pledge has preference over every other claimant
in the settlement of his claim from the price of the pledged thing.
Article 781 If
the thing pledged be sold at a price greater than the claim of the creditor,
the excess belongs to the owner thereof; and if, on the contrary, the proceeds of the sale
are less, the creditor must have recourse to the debtor for the balance.
Article 782 In
the circumstances of the last part of the foregoing Article, if the debtor
has become indigent, the creditor shares with the creditors of the bankruptcy.
Article 783 If
the debtor pays a part of the debt, he has no right to claim the restitution
of part of the thing pledged, and the creditor may retain the whole of it until the whole of
the debt is paid, unless another arrangement has been agreed upon between the debtor
and the creditor.
Article 784 It
is permissible to change the thing pledged for something else, with the
agreement of the two parties.
Article 785 Everything
which in a contract of sale is reckoned as appertaining to the
thing sold without any special mention thereof, enters also into the thing pledged.
Article 786 The
earning of the thing pledged and the profits which may accrue to it, will
form part of the thing pledged if they are joined to it; if they are not joined , they belong
to the debtor, unless another arrangement has been agreed upon the two parties.
Article 787 A
contract of pledged is binding as far as the debtor is concerned, but it is
optional on the creditor; therefore, the creditor may, whenever he desires, cancel the
contract, but the pledger cannot take back his pledge before he has paid his debt or
before
he has, in some legal manner, become discharged of his debt.
Article 788 A
pledge does not become cancelled by the death of the pledger or of the
creditor, but if the creditor dies the debtor may request that the pledge may be given to
the possession of a third person appointed with the consent of the heirs and of him.
If the parties concerned do not come to an agreement, the aforesaid person will be
appointed by the judge.
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Article 789 The
pledge is regarded as an, amanat’ (article on trust) when in the hands
of
the creditor; therefore, the creditor will not be responsible for its decay or for its
deterioration, unless he is at fault.
Article 790 When
the debtor has cleared himself from his debt, the pledge is a trust in
the hands of the creditor; but if, on being asked to return it, he refuses to do so, he will
become a guarantor for it, even if he is not at fault.
Article 791 If
the thing pledged becomes destroyed in consequence of the act of the
pledger himself or of some other person, the person who destroys it must give the
equivalent of the pledge, and the said equivalent will then become the pledge.
Article 792 The
attorneyship mentioned in Article 777 will not apply to the equivalent
pledge mentioned in the foregoing Article.
Article 793 The
pledger cannot enter into possession of the pledge in such a way as to
be contrary to the rights of the creditor, except with the latter’s permission
Article 794 The
debtor may make changes in the pledge, or perform other proprietory
rights on the pledge which are of advantage to it and which do not impinge on the rights
of the creditor, without there being any right for the creditor to prevent such action; if the
creditor prevents, the judge may give permission.
SECTION 19
On Gifts (Donation)
Article 795 A
Gift is a contract in virtue of which a person gives over to another gratis
the proprietory rights in a thing.
The person who gives is called, wahib’ (the donor); the other party is called, muttahab’
(the donee), and the thing which is the subject of the gift is called ainimohubeh’.
Article 796 The
donor must have capacity to contract and possess his thing
Article 797 The
donor must be the owner of the thing which he gives.
Article 798 A
gift does not take place except with the acceptance of the done and with
his taking possession of it, whether the donee himself takes over the gift or whether his
attorney does so: and taking possession of the thing without the permission of the donor
is of no effect.
Article 799 In
a gift to a minor, or to a lunatic, or to a person of unsound mind, the
taking possession of the legal guardian is lawful
Article 800 If
the thing given is in the hands of the donee there is no need for him to
take it over.
Article 801 A
gift may be reciprocal. Hence, the donor may make a condition that the
donee should give him a thing, or perform gratis a lawful service.
Article 802 If,
before possession has been taken, the donor or the donee dies, the gift
becomes void.
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Article 803 After
possession has been taken, also, the donor may take back his gift,
provided it still exists, except in the following circumstances:
1When
the donee is the father, the mother, or the children of the donee.
2 When
the gift has been reciprocated and the reciprocated gift has been hander over.
3 When
the thing given has passed out of the possession of the donee, or has become
the object of the rights of another , whether by way of compulsion , as where the donee
has become a ward in consequence , or by way of choice, as when the thing given has
been given as a pledge.
4When
a change has been made in the thing given.
Article 804 If
the donor terminates the gift, the usufruct of the thing given belong to the
donor if they are attached to the thing, and to the donee if they are separate.
Article 805 No
revocation can be made after the death of the donor or the donee.
article 806 If
a creditor agrees to surrender his claim upon the debtor, he has no right of
revocation.
Article 807 If
a person gives a thing to another by way of a benefaction (or alms), he
has no right of revocation.
PART3
On the Exercise of the Right of Pre emption
(Shuf’eh)
Article 808 When
real property, capable of being divided, is held jointly by two
individuals, and one of them transfers his share to a third person by way of sale, the
other
joint owner has the right to give the purchaser the price which he has paid for it, and to
take possession of the portion sold.
This right is known as the right of pre emption
(shuf’eh), and the person who exercises
that right is known as a, shafi ’.
Article 809 When
a building and trees are sold without the land, there is no right pre emption.
Article 810 If
the property of two persons enjoy the right of passage or a waterway held
in common, and one of them sells his property together with the right of passage on the
road or water, the other one has the right of preemption,
even though he be not a joint
bolder in undivided shares in the property itself ; but if one of the parties sells the
property apart from the right of passage, the other has no right of pre emption.
Article 811 If
the share of one of the two partners is a, waqf’ (religious endowment),
neither the custodian nor the beneficiary of the waqf has any right of pre emption.
Article 812 If
the thing sold consists of several units, and some of them are subject to
pre emption
and the rest are not , it is possible to execute a right of pre emption
in
respect of the part possible to execute a right of pre emption
in respect of the part
which
is capable of pre emption,
in proportion to its share of the price.
Article 813 There
is no right of pre emption
in an illegal sale.
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Article 814 The
fact that the sale is subject to an option is not an obstacle to the
exercise
of the right of pre emption.
Article 815 A
right of pre emption
must not be exercised only in respect of one part of
the thing sold; the person entitled to the above mentioned
right must either refrain from
it altogether or perform it in respect of the whole of the thing sold.
Article 816 The
exercise of the right of pre emption
renders void any transaction
which the purchaser may have performed before that and after the contract of sale, in
respect of the subject of the right of pre emption.
Article 817 In
respect of a partner who exercises his right of pre emption,
the
purchaser is a guarantor for any claim of owner ship, not the seller. But if, at the time of
the exercise of the right of pre emption
the subject of the right is not yet handed over to
the possession of the purchaser, the pre emptor
will not have any right of recourse
against the purchaser.
Article 818 The
purchaser is not a guarantor respecting any defect or fault or decay
which has taken place while the thing has been in his hands before the exercise of the
right of pre emption
and after the thing has been claimed, provided that he has not
used
it excessively or been guilty of negligence.
Article 819 Profits
which may have accrued to the thing sold before the exercise of the
right of pre emption
belong to the purchaser if they are separate, and to the pre emptor
if they are inseparable; but the purchaser may uproot or destroy any building which he
made or any tree which he has planted.
Article 820 If
it is apparent that at the time of the sale the thing sold was defective and
the purchaser has there fore been granted a reduction of price, the pre emptor
is
entitled
to deduct a corresponding amount from the price at the time when he exercises his
option.
The rights of the purchaser in relation to the seller with regard to a claim of ownership in
the thing sold are the same as those which apply in the course of a contract of sale.
Article 821 The
right of pre emption
is an immediate one.
Article 822 A
right of pre emption
may be waived; and the fact that it is waived may
be inferred from anything which points towards the fact that the above mentioned
right
is renounced.
Article 823 The
right of pre emption
is transferred to the heir or heirs of the pre emptor
after his death.
Article 824 If
one or more of the heirs waive their right, the remaining heirs cannot
exercise their right only in relation to their own portion; they must either waive their right
entirely, or enforce it in relation to the whole of the thing sold.
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PART .4
On Wills and Inheritance
CHAPTER 1
ON WILLS
SECTION 1
On General Considerations
Article 825 Wills
are divided into two categories Possessory and Contractual.
Article.826 A
Possessory will occurs when a person bestows on another person,
without
charge, the property in a thing or a benefit belonging to him to take effect from the date
of his death.
A Contractual Will occurs when a person appoints one or more other persons to carry
out
an affair, or to perform other possessory acts.
The person making the will is called the Testator; the person in whose favour a
possessory will is made is termed the Beneficiary; the thing which is subject matter of
the
will is called the Legacy (,mussabe’) ; and the person who, in virtue of a contractual will
is appointed either as a trustee for one third of the estates or a trustee for a minor, is
called the executor (,vasi’).
Article 827 A
right of property resulting from a will does not become definite except
with the agreement of the beneficiary after the death of the testator.
Article 828 If
the beneficiaries are not limited in number, as for instance if the will is in
favour of the poor or for a work of public benevolence, there is no need to accept.
Article 829 The
acceptance of the beneficiary before the death of the testator is of no
effect, and the testator may revoke his legacy, even if the beneficiary may have taken
possession of the legacy.
Article 830 In
relation to the beneficiary, the rejection or the acceptance of the legacy
after the death of the testator is valid. Therefore, if the beneficiary rejects the legacy
before the death of the testator, he may accept it after the death ; and if after his death
lie
accepts it and takes possession of the legacy, he may not reject it afterwards; but if he
has
accepted the legacy before the death, a second acceptance after the death is not
necessary.
Article 831 If
the beneficiary is a minor or insane, the guardian will have to accept or
reject the legacy.
Article 832 The
beneficiary may accept the legacy in relation to a portion of the legacy;
in that case the will, in relation to the portion which has been accepted, is valid, in
relation to the rest it is void.
Article 833 The
heirs of the testator cannot take possession of the legacy, as long as
the
beneficiary has not communicated to the heirs whether he rejects or accepts it
If delay in this notification results in a loss the heirs, the judge will compel the
beneficiary to declare his decision.
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Article 834 In
a contractual will acceptance is not a necessary condition; but the
executor may refuse the duty referred to him during the life time of the testator ;and if he
has not refused it before the death of the testator, he will have no subsequent right of
refusal, even if he was ignorant of the trust.
SECTION 2
On the Testator
Article 835 The
testator must be competent to possess the thing which is the subject of
the will.
Article 836 If
a person wounds or prisons himself with the intention of committing
suicide, or performs other acts of the same nature which causes death, and if after that
act
he makes a will, that will is void if he dies; but if, by chance, he does not die ,the will is
valid.
Article 837 If
a person, by a will, deprives one or more of his heirs of their inheritance ,
that disposition is not valid.
Article 838 The
testator can revoke his will.
Article 839 If
the testator makes a second will in contradiction of the first the seconed
will is valid.
SECTION 3
On the Legacy
Article 840 A
Will providing for the employment of a thing in a way contrary to law is
void.
Article 841 The
legacy must be the property of the testator; and a will which disposes of
the property of another, even though it is with the permission of the owner, is void.
Article 842 It
is possible to dispose in a will of property which is not in existence.
Article 843 The
testamentary disposition of more than one third
of the estate is not
valid, except with the permission of the heirs; and if some of the heirs agree, the
disposition applies only to the share of those heirs.
Article 844 If
the legacy is a definite thing, that thing is to be valued, if its price is more
than one third
of the estate, the excess belongs to the heirs , unless they allow
otherwise.
Article 845 The
measurement of the third of the estate is fixed in relation to the
testator’s property at his death, not at the time of his making the will.
Article 846 If
the legacy consists of the property, either for a specified time or
permanently, the portion of one third
shall be separated as follows:
In the former case, the whole property, with its profits, will be valued . Then, the said
property will be valued having regard to the loss of profits during the period of the
legacy; and the difference between the two prices will be reckoned towards the third
part.
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In the latter case, i.e. if the legacy be the permanent profits of the property, and for this
reason the property itself has no value, the price of the property, having regard to the
profits, will be reckoned towards the third part.
Article 847 If
the legacy consists of things of a standardized nature, not of particular
units, the determination of the units there of is the duty of the heirs, unless other
arrangements have been laid down in the will.
Article 848 If
the legacy be undivided share of the estate, such as a quarter or a third
thereof, the beneficiary will become a partner in undivided shares with the heirs in that
same proportion of the estate
Article 849 If
the testator leaves as a legacy, in a specified manner, more than one third
of his estate, and the heirs do not consent to more than one third,
the portion be
separated from the estate in the same manner as laid down in the will, up to the amount
of
onethird,
and the excess will be void; and if the legacy relates to several objects
without
specifying how much goes to each, a deduction will be made from all those objects.
SECTION 4
On the Beneficiary Under a will
Article 850 The
beneficiary must be alive, and must be able to be the proprietor of the
thing which is left to him in the will.
Article 851 A
legacy in favour of an unborn child is valid, but proprietory rights only
pass if the child is born alive
Article 852 If
abortion takes place as the result of a crime, the legacy goes to his heirs,
unless the crime prevents their inheriting.
Article 853 If
the beneficiaries are more than one in number, but are limited in number,
the legacy is divided equally among them, unless the testator arranged differently in the
will.
SECTION 5
On the ‘Vasi’ (Executor)
Article 854 The
testator can appoint one or more persons as executor. If they are more
than one, the persons appointed must carry out the duty together, unless each one of
them
has been declared independent.
Article 855 The
testator may appoint several persons in succession to be executor, in
this way, that if the first dies, the second becomes the executor, and if the second dies,
the
third, etc.
Article 856 It
is possible to appoint a minor as an executor, together with a person of
full age. In that case, the person of full age will execute the duty until the minor arrives at
full age.
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Article 857 The
testator may appoint one person to supervise the operations of the
executor.
The limits of the authority of the supervisor will be as stipulated by the testator, or else
will be determined by analogy. Article 858 The
executor is in the position of a trustee
for the property which is in his possession in accordance with the will, but he is not a
guarantor, except in case there is excessive use or negligence.
Article 859 The
executor must act in accordance with the testator, or else he will be a
guarantor and will be dismissed.
Article 860 No
one except the father or the father’s father may an executor .for a minor.
CHAPTER 2
ON INHERITANCE
SECTION 1
On the causes or Inheritance and the Various Degrees of Heirship
Article 861 Two
things give rise to inheritance: relationship and connexion by marriage.
Article 862 Persons
who take inheritance by relationship are of three categories:
1 Father,
mother and children.
2 Grandparents,
brother, sister and their children.
3 Paternal
uncles and paternal aunts, maternal uncles and maternal aunts and their
children.
Article 863 Heirs
of the lower categories take an inheritance when no person of a
higher
category exists.
Article 864 An
instance of those who inherit by marriage is one of the spouses who
survives the other one.
Article 865 If
several causes of inheritance are united in the same person, he takes
inheritance from all the causes, unless some of those causes exclude other, in which
case
he takes inheritance only from those causes which exclude others.
Article 866 If
there is no heir, the judge will make dispositions concerning the estate.
SECTION 2
On the True Commencement of the Inheritance
Article 867 The inheritance becomes definite on the real or the supposed death of
testator.
Article 868 The
rights of possession of the heirs, in relation to the estate of the
deceased, do not become established except after the payment of the dues and the
debts
attaching to the estate of the deceased.
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Article 869 The
dues and debts which attach to the estate of the deceased and must be
paid before it is divided up are as follows
1 The
price of the winding sheet
of the corpse, and the dues which attach to the
property of the estate, such as a thing which is subject to a pledge.
2 The
debts and the proprietory charges which were incumbent on the deceased.
3 The
legacies of the deceased, if without the permission of the heirs up to one third of
the estate ; if with their permission, more than one third.
Article 870 The
dues mentioned in the foregoing Article must be paid in the order laid
down in that Article; and the remainder, if any, must be divided up among the heirs.
Article 871 If
the heirs perform transactions relating to the actual chattels constituting
the estate, those transactions are of no effect as long as the debts of the deceased are
not
paid; and the creditors can cancel them.
Article 872 The
goods of a continually absent person will not be distributed except after
proof of his death, or after the expiration of the period which such a person might
normally be expected to live.
Article 873 If
the date of the death of persons who take inheritance from one another is
not known, and the priority of one over the other is not ascertained, those persons will
not
take inheritance from one another, except where the death takes place as the result of
drowning or an accident, in which case they will take inheritance from one another.
Article 874 If
persons who are entitled to inherit one from another die, and the date of
the death of one of them is known, and it is not known whether the death of the other
was
before or after that date, only the person whose date of death is unknown will take an
inheritance form the other, and not vice versa.
SECTION 3
On the Conditions and the Impediments of Inheritance
Article 875 It
is a condition of inheritance that the heir should be alive at. the moment
of the death of the person from whom the inheritance issues; and if it is a question of an
unborn child, it takes an inheritance only if it was conceived at the moment of death, and
if it was born alive, even if it dies immediately after birth.
Article 876 If
there be a doubt whether the infant was alive at the moment of birth, no
inheritance passes.
Article 877 If
there be a dispute as to the moment of conception, the provisions of the
law relating to the indications furnishing a presumption of paternity will be applied.
Article 878 When
at the time of death, there is an infant conceived which, if born and
capable of inheriting, will prevent the succession of all or a part of the other heirs, the
inheritance will not be divided up till such time as the state of the infant be determined;
and if the infant conceived will not stand in the way of the inheritance of any of the other
heirs, and the latter, desires the estate to be divided up, a portion must be set aside for
the
conceived infant equal to the portion of two sons of that degree of relationship; and the
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portion of each of the heirs is conditional until the state of the infant concerived is
determined.
Article 879 If
there be a lost or untraceable person among the heirs, his portion will be
set aside until his state is determined, if it be established that he died before the source
of
the inheritance, his portion returns to the other heirs; otherwise, it goes to him or to his
heirs.
Article 880 Murder
is an obstacle to succession; hence, a person Who intentionally kills
the deceased is prevented from taking any inheritance from him, whether he were the
perpetrator, or whether he were the instigator, or whether he were acting singly or as the
accomplice of others.
Article 881 If
the intentional killing of the deceased was by process of law, or justified
defense, the provisions of the pervious Article do not apply.
Article 881 bis An
unbeliever (Kafir) does not take inheritance from a Muslims and if
there are unbelievers among the heirs of a deceased unbeliever, the unbelieving heirs
do
not take inheritance even if they are prior to the Muslim as concerns class and degree.
Article 882 After
a solemn malediction (li’an) husband and wife will take inheritance
from one another; similarly a child who, owing to a denial of paternity, has been the
cause of a solemn malediction, does not take inheritance from the father nor the father
from him; but the said child takes inheritance from the mother and his maternal relations,
and vice versa.
Article 883 If
a father, after pronouncing a solemn malediction, withdraws it , the son
takes inheritance from him; but he takes no inheritance from the paternal relations, nor
does the father nor the inheritance from the paternal relations, nor does the father nor
the
paternal relations take inheritance from the son.
Article 884 An
illegitimate child does not take inheritance from the father, the mother,
or their relations; but if the illegitimacy of the relationship of which the child is the result
is established in relation to one of the parties, while it is not established for the other
party by reason of violence or error, the child takes inheritance only from the latter side,
and vice versa.
Article 885 The
children and the relations of the persons who are deprived of
inheritance in accordance with Article 880 are not deprived of inheritance; hence, the
offspring of a person who has killed his own father takes inheritance from his murdered
grand father, if nearer relatives do not come between.
SECTION 4
On Exclusion From Inheritance (Hujb)
Article 886 Exclusion
from Inheritance (hujb) is the name given to the state of an heir
who is completely or partially excluded from taking an inheritance owing to the existence
of another heir.
Article887 Exclusion
from inheritance is divided into two classes:
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First, when the heir is deprived of the inheritance totally, e.g. a brother’s son is deprived
of the inheritance owing to the existence of deprived of an inheritance owing to the
existence of brothers of the full blood
Second, when the portion of an heir is lessened from the highest grade to the lowest
grade; as for instance when the share of a husband is lessened from a half to a quarter
whenever there are children from the wife; and similarly when the share of the woman is
reduced from a quarter to an eight when ever there are children from her husband.
Article 888 The
determining factor in total exclusion from inheritance is the nearness of
relationship to the deceased; hence, each degree of heirs deprive the next degree of
taking
any inheritance except in the case mentioned in Article 936 and in the cases where the
more remote heir is able to take inheritance by way of representation of another, in
which
case both take an inheritance.
Article 889 As
between the heirs of the first degree, if there, be no children of the
deceased, the children’s children, to whatever extent they go down, are the
representatives of their father or their mother, and take an inheritance with the remaining
parent; but, as between the children, the nearest to the deceased deprives the further
ones
from inheritance.
Article 890 As
between the heirs of the second degree, if there are no brothers or
sisters
of the deceased, the children of his brothers or sisters, however far down they go, are
the
representatives of their father or mother , and take an inheritance with whichever of the
ancestors of the deceased has survived; but , as between the ancestors or the brother’s
or
sister’s children, the nearer to the deceased deprives the remoter from an inheritance.
The provisions of this Article will also be applied in the case of the heirs of the third
degree.
Article 891 The
following heirs are not subject to exclusion from an inheritance:
Father, mother, son, daughter, husband and wife.
Article 892 Partial
exclusion from inheritance of a share occurs in the following cases
1 Whenever
the deceased has children or grandchildren, in that case the parents of the
deceased may not take more than one third
of the estate, except in accordance with
Articles 908 and 909, in which case it is possible for either of the parents to take, by way
of relationship or remainder, more than one sixth; and similarly the husband is restrained
from taking more than one quarter, and the wife from taking more than one eighth.
2 Whenever
the deceased has brothers or sisters. In that case the mother of the
deceased
is restrained from taking more than one sixth,
provided that:
a There
be at least two brothers, or one brother with two sisters, or four sisters
b Their
father be still alive.
c She
under no incapacity for inheriting, except for reasons of murder ; and
d The
brothers and sisters of the deceased be of the full blood
or on the father’s side.
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SECTION 5
On ‘Shares’ of Inheritance Those Entitled to the Same
Article 893 The
heirs take their inheritance sometimes by shares; and sometimes by
relationship; and sometimes by both shares and by relationship.
Article 894 Persons
who take, share are those whose portions of the estate are fixed;
and
persons who take by relationship are those whose portions are not fixed.
Article 895 The
fixed portions which are termed, shares are defined as a half, a quarter,
an eighth, two thirds,
and one sixth
of the estate.
Article 896 The
persons who take inheritance by share consist of the mother, the
husband, and the wife.
Article 897 The
persons who take partly by share and partly by relationship consist of
the father, the daughter or the daughters, and the sisters on the father’s side or of the full
blood, and cousins (kalaleh) on the mother’s side.
Article 898 All
other heirs, other than those mentioned in the two preceding Articles,
take their inheritance only by ,relationship’.
Article 899 Three
categories of heirs are entitled to a share of one half
of the estate
1 The
husband, on condition that there be no children from the deceased wife whether
from that husband or from another husband.
2A
daughter, if she be sole offspring.
3A
sister of full blood or half blood on the father’s side, provided that she be the only
one.
Article 900 Two
categories of heirs are entitled to take one quarter
of the estate as
their share.
1 The
husband, if the woman dies having children.
2The
wife or wives, prided that the husband has died without offspring.
Article 901 A,
share’ of one eight
belongs to the wife or wives, provided the husband
has died having children.
Article 902 A
twothirds
share of the estate belongs to two categories of heirs:
1 Two
daughters or more, provided there are no male offspring.
2 Two
or more sisters of the full or the half blood on the father’s side, if there are no
brothers.
Article 903 Two
categories of heirs take a onethird
share:
The father, the mother, and the mother’s relation (kalaeh) if only one.
Article 904 Three
categories of heirs take a onesixth
share:
The father, the mother, and the mother’s relation (kalaleh) if only one.
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Article 905 Each
of the persons entitled to a share takes his portion from the estate of
the deceased; and then the rest remains for those entitled by relationship: and if the
person entitled to take by relationship be not equal in that category to the rank of the
person who takes by a share, the rest is returned to the person entitled by share, except
in
the case of a husband or a wife, to whom it will not be returned; nevertheless, if there be
no heir to the deceased except the husband, the balance of the estate remaining after
abstraction of the share is returned to him.
SECTION 6
On the Portions of Inheritance of the Various Degrees of Heirs
SUBSECTION 1
On the Portions of Inheritance of the First Degree
Article 906 If
the deceased has left no living children, and no living children’s children
of whatever degree, either of the parents, if alone, takes the whole estate; and if the
father
and mother of the deceased are both alive, the mother takes one third
and the father
two
thirds.
But if the mother comes after someone else, onesixth
of the estate belongs to
the
mother and the rest to the father.
Article 907 If
the deceased leaves no parents, but has one or more children, the estate
will be divided as follows:
If the offspring consists of only one, whether son or daughter, the whole of the estate
belongs to that child.
If there are several children, but all are sons or all daughters, the estate will be divided
equally among them.
If there are several children, some being sons and some daughters each son takes twice
as
much as each daughter.
Article 908 If
the father or the mother of the deceased, or both parents, are alive,
together with one daughter, the share of each one of the father and the mother will be
onesixth
of the estate.; and the share of the daughter will be one half
there of. The
remainder must be divided among all the rest of the heirs in proportion to the share of
each; unless the mother comes after someone else, in which case the mother takes no
portion of the remainder.
Article 909 If
the father or the mother, or both the parents of the deceased are alive,
together with several daughters, the share of the whole of the daughters will be twothirds
of the estate ,which is to be divided equally among them; and the ,share’ of each one of
the father and the mother will be one sixth
. And if there be a remainder it will be
divided among all the heirs in proportion to their shares unless the mother comes after
someone else, in which case the mother will not take any portion of the remainder.
Article 910 If
the deceased has sons or daughters, even if only one person, his
grandchildren do not inherit.
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Article 911 If
the deceased leaves no sons or daughters, his grand children are the
legal
representatives of his sons or daughters, and in this way are reckoned as belong in to
the
first degree of descendants, and take inheritance with each one of the parents who are
alive.
The division of the inheritance among the grandchildren will take place in accordance
with their sex, that is to say, each individual will take the portion the person through
whom he claims descent from the deceased; hence, the children of a son take twice as
much as the children of a daughter.
In the division among individuals of each sex, a boy takes twice as much as a girl.
Article 912 Children’s
children, to whatever generation they extend, take inheritance in
the way recorded in the previous Article subject to this, and those nearer to the
deceased
exclude those more remote from him.
Article 913 In
all the conditions mentioned in this subsection, whichever of the married
pair is the survivor takes his or her, share and this share means one half of the estate for
the surviving husband and onequarter
for the surviving wife, provided that the deceased
left no children or grandchildren; and it means one quarter
of the estate for the
husband
and one eighth
for the wife if the deceased left children or children’s children. And the
remainder of the estate is to be divided among the other heirs in accordance with the
preceding Articles.
Article 914If,
owing to the existence of several persons entitled to shares, the estate of
the deceased be not sufficient to satisfy of them, the deficiency falls on the daughter or
the two daughters; and if, after deduction of the portion of those entitled to shares there
still remains something, and there be no heirs entitled to take the remainder by way of
relationship, this remainder will be divided among the persons entitled to shares in
accordance with the provisions of the preceding Articles; but the husband and the wife in
all case, and the mother if she comes after someone else, take no part of the remainder.
Article 915 The
ring which the deceased used to wear, and also the Qoran and the
personal clothes and the sword of the deceased go to the eldest son, without being
reckoned as part of his portion, unless the estate of the deceased consists of nothing
else.
SUBSECTION 2
On the Portions of Inheritance of the Second Degree
Article 916 If
the estate goes to the heirs of the second degree.
Article 917 Each
one of the heirs of the second degree, if the only one, takes the whole
of the estate; and if there are more than one, the estate will be divided among them in
accordance with the following Articles.
Article 918 If
the deceased leaves full brothers or sisters, halfbrothers
or sisters do
not
inherit.
If there are no full brothers or sisters, half brothers
and half sisters
on the father’s side
take their portion of the inheritance.
87
Article 919 If
the heirs of the deceased consist of several full brothers, or of several half
brothers
on the father’s side, or several full sisters, or of several half sisters
on the
father’s side, the estate will be divided among them equally.
Article 920 If
the heirs of the deceased consist of several full brothers and sisters, or of
several half brothers
and half sisters
on the father’s side, the share of a male will be
twice that of a female.
Article 921 If
the heirs consist of several brothers on the mother’s side, or of several
sisters on the mother’s side, the estate will be divided among them equally.
Article 922 If
there are full brothers and also brothers and sisters from the mother’s
side, the division will be performed in the following manner:
If the brother or the sister on the mother’s side be one person only, he or she takes one sixth
of the estate, and the rest belongs to the brothers and sisters of the full or half
blood
on the father’s side, who will divide up the rest in the manner laid down above.
If there are several brothers and sisters on the mother’s side (kalaleh), one third
of the
estate belongs to them and is divided among them equally, and the rest belongs to the
brothers and sisters of the full or the half blood on the father’s side and is divided among
them in accordance with the disposition laid down above.
Article 923 If
the heirs consist of grandfathers or grandmothers, the estate will be
divided among them in the following manner:
If there be a sole grandfather or grandmother, whether paternal or maternal he or she
takes the whole of the estate.
If there be more than one grandfather and grandmother, and if both be paternal, males
take twice as much as females and if they be both on the maternal side, the estate is
divided among them equally.
If there be both grandfather or grandmother on the father’s side and grand father or
grandmother on the mother’s side, one third
of the estate goes to the grandfather or
grandmother on the mother’s side; and if there be more than one ancestor on the
mother’s
side; that third part will be divided equally among them all; and the remaining two thirds
will go to the grandfather or grandmother on the mother’s side; and if there be more than
one such ancestor, the portion of a male in that two thirds
part will be twice the portion
of a female.
Article 924 If
the deceased leaves ancestors and brothers and sisters (kalaleh), two thirds
of the estate goes to the heirs which have relationship on the side of the father;
and
in dividing up this portion the males take twice the portion of the females; and one third
goes to the heirs which have relationship on the mother’s side, and is divided among
them equally; nevertheless, if the relations on the mo her ’s side consist of only one
brother or one sister on the mother’s side, he or she will only be entitled to one sixth
of
the estate.
Article 925 In
all the cases dealt with in the foregoing Articles, if the deceased leave
neither brothers nor sisters, the nephews and nieces are their legal representatives, and
take inheritance with the ancestors; in that case, the division of the inheritance in regard
to the nephews and nieces will take place by way of their generation, that is to say, each
88
generation takes the portion of that person through whom he or she claims relationship
with the deceased Hence the children of full or half brothers and sisters will take portion
of the full or half brothers and sisters on the father’s side only , and the children of
brothers and sisters on the mother’s side take the inheritance of the brothers and sisters
on
mother’s side.
In dividing the inheritance among the individuals of one generation, if the children of the
full or the half blood on the father’s side be alone, the male take twice the portion of the
female’s; and if they descend from brothers and sisters on the mother’s side, the portion
will be shared equally.
Article 926 If
there be in existence both brothers and sisters of the full blood, and those
of the half blood on the father’s side, and those of the half blood on the mother’s side,
the
brothers and sisters of the half blood on the father’s side will be excluded from the
inheritance
Article 927 In
all the cases mentioned in this subsection whichever one of the married
pair remains takes his or her, share’ from the original estate for the husband, and a
quarter
thereof for the wife.
The shares of the relations of the mother, whether ancestors or descendants (kalaleh),
are
taken from the original estate.
If, owing to the inclusion of the husband or the wife, there be a deficiency in the available
inheritance, this deficiency will be borne by the brothers and sisters of the full blood or of
the half blood on the father’s side or by the paternal ancestors.
SUBSECTION 3
On the Portions of Inheritance of the Heirs of the Third Degree
Article 928 If
there be no heir o the second degree left by the deceased, his estate
goes
to the heirs of the third degree.
Article 929 Each
one of the heirs of the third degree, if he is the sole person of that
description, takes the whole of the inheritance; and if there be more than one such
person,
the estate will be divided among them in accordance with the following Articles.
Article 930 If
the deceased leaves uncles or aunts related through both father and
mother, the uncles and aunts related through only one parent do not inherit.
If there be no uncles or aunts related through both father and mother, the uncles and
aunts
related through the father take their portion.
Article 931 If
the heirs of the deceased consist of several paternal uncles or of several
paternal aunts, the estate will be divided among them equally, provided that they are all
related through father and mother, or all through the father, or all through the mother.
If there be paternal uncles and paternal aunts, all of them being from one mother, they
will divide the estate equally; but if all of them are from the same father and mother, or
from the same father only, the portion of the males will be twice that of the females.
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Article 932 If
there be paternal uncles of the same mother, and also paternal uncles of
the same mother and father and of the same father only, the paternal uncle or aunt of
the
same mother, if alone, takes one sixth
of the inheritance; if they be several, they take
onethird
of the estate and divide this third equally among themselves; and the rest of
the
estate goes to the uncles of the same father and mother, or of the same father, and in
the
sharing males take twice the portion of the females.
Article 933 If
the heirs of the deceased consist of several maternal uncles or of several
maternal aunts, or of several maternal uncles and maternal aunts together, the estate is
divided among them equally, whether all are of the same father and mother, or all of the
same father, or all of the same mother.
Article 934If
the heirs of the deceased consist of a maternal uncle and aunt from the
same father, or from the same father and mother, together with a maternal uncle and
aunt
from the same mother, if the relation of the same be one only he or she takes one sixth
of the estate ;if there be more than one, they take on third
of it and divide it equally
among themselves, and the remainder belongs to the maternal uncles and aunts of the
same father and mother, or of the same father, who also divide it among themselves in
equal shares.
Article 935 If
the deceased leaves one or more paternal uncles or aunts together with
one or more maternal uncles or aunts, one third
of the estate goes to the maternal
uncles
and aunts, and two thirds
to the paternal uncles and aunts.
The division of the third among the maternal uncles and aunts will be in equal portions ,
but if, among the maternal uncles and aunts there be one related only through the
mother,
one sixth
of the portion of the maternal uncles and aunts goes to that person; and if
there
be several related only through the mother, one third
of that portion will be given to
them, and in that case there will be an equal division among them.
In the division of the two thirds
part among the paternal uncles and aunts, the portions
of the males will be twice that of the females; but if there be one person of the paternal
uncles and aunts who is related through the mother only, one sixth
of the portion of the
paternal uncles and aunts goes to him ; and if there be more than one such person
related
through the mother only, one third
of that portion will go to them, in that case they will
divide that third portion equally.
In the division of the five sixth
or the two thirds
which remains after deducting the
portion of the paternal uncles and aunts, it will be divided among the paternal uncles and
aunts related by father and mother or those related by the father only, in such a way that
the portion of each male is twice that of each female.
Article 936 If
there be living paternal uncles or aunts or maternal uncles or aunts, their
children do not inherit, except when the heirs are confined to one nephew from a
paternal
uncle related by father and mother, together with one paternal uncle related only on the
side of the father; in that case only, the nephew deprives the uncle of an inheritance; but,
if, in addition to the nephew from a paternal uncle related by father and mother, there be
a maternal uncle or aunt, or several paternal uncles or aunts even if related through the
father alone, the nephew will take no inheritance
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Article 937 If
the deceased has left neither paternal uncles or aunts nor maternal
uncles
or aunts, their children take inheritance in their stead, and the portion of each stock will
be the portion of that person through whom the stock claims descent from the deceased
Article 938 In
all the case mentioned in this subsection, the surviving spouse take his or
her share from the original estate, and this share means one half
of the original estate
for
the deceased’s husband and one quarter
for the deceased’s wife.
A person related through the mother takes his portion from the original estate, and the
remainder belongs to the persons related through the father; and if there be a deficiency,
it will be borne by the persons related through the father.
Article 939 In
all the cases mentioned in this subsection and two previous subsections,
if the heir is a hermaphrodite and be one of a group of heirs which are such that the
males
take twice the portion of the females, his portion will be determined as follows.
If the indications of masculinity are the greater, he takes the portion of boy of his degree;
and if the indications of femininity are the greater, the hermaphrodite takes the portion of
one girl of that degree; and if neither the masculine nor the feminine indication be
preponderant, the hermaphrodite will take one half
of the sum of the portions of one
boy
and one girl of his degree.
SUBSECTION 4
On the Inheritance of Husband and Wife
Article 940 A
married pair, married permanently, and not restrained from inheriting,
take inheritance one from the other.
Article 941 The
portions of inheritance of a husband and a wife follow the provisions of
Articles 913, 927 and 938.
Article 942 If
there be more than one wife, the fourth or eighth part, which belongs to
the wife, will be divided equally among them.
Article 943 If
the husband has divorced his wife in such a way that the divorce is
revocable, either one of them who dies before the expiry of the “uddah” period will
inherit from the other; but if the death of one of them takes place after the expiry of the
“uddah” period, or if the divorce was irrevocable, they will not inherit from one another.
Article 944 If
the husband divorces his wife when he is ill, and dies of that same
disease
within a year from the divorce, the wife takes inheritance from him, even if the divorce
were irrevocable; provided that the wife has not taken another husband.
Article 945 If
a man marries a woman when he is ill, and dies of that disease before
consummation of the marriage, the wife does not take inheritance from him; but if he
dies
after consummation, or after recovery from that disease, the wife takes inheritance from
him.
Article 946 The
husband takes inheritance from the whole of the effects of the wife; but
the wife takes only from the following effects
a From
the movable property, of whatever kind.
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b From
building and trees.
Article 947 The
wife takes inheritance from the price of the buildings and trees, and not
from those things themselves; and the method of valuation is this, that the buildings and
trees are valued on the supposition of their being worthy to remain in the ground, but
without taking into consideration the labour.
Article 948 If,
in the circumstances of the previous Article, the heirs refuse to pay the
price of the building and the trees, the woman may realise her right on those thing from
the thing themselves. Article 949 If
there be no other heir apart from the husband or
wife , the husband takes the whole of the estate of his late wife; but the wife takes only
her portion , and the rest of the estate of the husband is considered as the estate of a
man
without any heir, and will be dealt with in accordance with Article 866.
BOOK 3
On Various Provisions
Article 950 – “Replaceable things” (misli) mentioned in this Act mean things which are
such that similar things are well known and exist in great quantities, such as seeds; and
priceable things (qaimi) are the counterpart of “misli” things.
Nevertheless, the determination of this theory depends upon custom.
Article 951 Encroachment
(ta’addi) consists of conduct surpassing the limits of
permission or ordinary usage, in relation to a thing or a right belonging to another.
Article 952 Negligence
(tafrit) consists of omission of an act which, in virtue of an
agreement of by ordinary usage, is necessary for the protection of another’s property.
Article 953 Fault
includes excessive use and negligence. Article 954 All
optional
contracts (jaiz) are cancelled by the death of one of the parties; similarly they are
cancelled by imbecility, in matters where adolescence is a necessary condition.
Article 955 The
provisions of this Act are validly applicable to all circumstances which
took place before this Act.
BOOK 1
General Terms
Article 956 The
capacity to possess rights begins with the birth of a human being and
ends with his death.
Article 957 A
child in the womb will enjoy civil rights provided that it comes into the
world alive.
Article 958 Every
human being is entitled to civil rights but nobody can utilise and
employ these rights unless he possesses legal capacity for so doing.
Article 959 Nobody
can alienate himself entirely from the enjoyment or use of the
whole or part of his civil rights.
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Article 960 Nobody
can dispossess himself of his liberty or forgo the enjoyment of his
liberty so long as it is within the limits of decency and his action is not contrary to the
law.
Article 961 Foreign
nationals are also entitled to the enjoyment of civil rights with the
following exceptions:
1 In
respect of rights which are recognized by law as being explicitly and exclusively
for Iranian subjects or explicitly denied to foreign nationals.
2 In
respect of rights concerning personal status which are not accepted by the law of
the Government of the foreign national.
3 In
respect of special rights created solely from the point of view of the Iranian people.
Article 962 Determination
of the capacity of any person to contract is to be in
accordance with the law of his own country; nevertheless, in the case of a foreign
national who carried out a civil contract in Iran for which, according to the law of his
own country, he did not possess capacity or possessed only a partial capacity, and if,
apart from his foreign nationality, he can be recognized according to Iranian law as
possessing the capacity to make that contract, be will in fact be recognized as having
capacity in respect of that contract.
The foregoing recognition will not include civil contracts concerning family rights, rights
of inheritance or the transfer of real estate situated outside Iran.
Article 963 If
husband and wife are not nationals of the same country, their personal
and financial relations with one another will be subject to the laws of the country of the
husband.
Article 964 Relations
between parents and their children are subject to the law of the
country of the father unless the only certain parentage of the child is that of its mother, in
which case the relations between the two follow the laws of the country of the mother.
Article 965 Legal
guardianship and the appointment of a guardian for minor children
will be in accordance with the laws of the country of the ward.
Article 966 Possession,
ownership and other rights exercised over moveable or
immovable property follow the laws of the country where the things exist or are situated;
nevertheless, the transfer of moveable property from one country to another cannot
affect
or limit the rights which persons may have acquired over those things in accordance with
the laws of the country in which the things were first situated.
Article 967 The
moveable or immovable property of deceased foreign nationals in Iran
will be dealt with under the laws of the country of the deceased person only in case of
substantive laws such as the laws concerning the nomination of the heirs, the
determination of the extent of their respective shares in the inheritance and of the
proportion of the assets which the deceased person could have disposed of by virtue of
a
will.
Article 968 Obligation
arising out of contracts subject to the laws of the place of the
performance of the transaction except in cases where the parties to the contract are both
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foreign nationals and have explicitly or impliedly declared the transaction to be subject to
the laws of another country.
Article 969 The
method of drawing up a document follows the laws of the place where
that document is drawn up.
Article 970 Foreign
diplomatic or consular officers in Iran can carry out marriage
formalities only in cases where the parties to the marriage are both nationals of their
country and also where the laws of that country allow them to nationals of their country
and also where the laws of that country allow them to do so. The marriage must in any
case be registered at the Civil Status Office.
Article 971 Claims
and lawsuits follow, in matters of competency of the court and of
laws of procedure, the laws of the place where they are instituted. The fact that the same
case or claim is already being decided by a foreign court cannot nullify the competency
of the Iranian court.
Article 972 Effect
cannot be given in Iran to judgments issued by foreign courts and
official documents recognized as being enforceable by law in a foreign country unless an
order to do so is issued in accordance with Iranian laws.
Article 973 If,
in accordance with Article 7 of Volume I of this Act or the foregoing
Article, the law of the foreign country which is to be enforced has made reference to
another law, the court is not bound to observe such reference unless the reference was
originally made in favour of Iranian laws.
Article 974 The
stipulations of Article 7 and Articles 962 to 974 of this Act will only be
enforced insofar as the enforcement is not incompatible with the international treaties
signed by the Government or with the provisions of special laws.
Article 975 The
court cannot enforced foreign laws or private agreements which are
contrary to public morals or which may be considered by virtue of injuring the feelings of
society or for other reasons, as contrary to public order, notwithstanding the fact that the
enforcement of such laws is permissible in principle.
BOOK 2
Concerning Nationality
Article 976 The
following persons are considered to be Iranian subjects
1 All
persons residing in Iran except those whose foreign nationality is established; the
foreign nationality of such persons is considered to be established if their documents of
nationality have not been objected to by the Iranian Government.
2Those
born Iran or outside whose fathers are Iranian.
3 Those
born in Iran of unknown parentage.
4 Persons
born in Iran of foreign parents, one of whom was also born in Iran.
5 Persons
born in Iran of a father of foreign nationality who have resided at least one
more year in Iran immediately after reaching the full age of 18; in other cases their
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naturalization as Iranian subjects will be subject to the stipulations for Iranian
naturalization laid down by the law.
6 Every
woman of foreign nationality who marries an Iranian husband.
7Every
foreign n who has obtained Iranian nationality
Note Children
born of foreign diplomatic and consular representatives are not affected
by Clause 4 and 5 of this Article.
Article 977 –
(a) If persons mentioned in Clause 4 of Article 976 wish to accept the nationality of their
fathers they must submit a written declaration to be Ministry of Foreign Affairs to which
they should annex a certificate issued by the national Government of their fathers to the
effect that the said Government would recognize them as their own nationals.
(b) If persons mentioned in Clause 4 of Article 976 after reaching the full age of 18 years
wish to remain of the nationality of their fathers, they must, within a period of one year,
submit a declaration to the Ministry of Foreign Affairs to which they should annex a
certificate from their father’s national Government indicating that the said Government
would recognize them as its own nationals.
Article 978 Reciprocal
treatment will be observed in the case of children born in Iran of
nationals of countries where children born of Iranian subjects are considered as
nationals
of that country and the return of such children to Iranian nationality is made dependent
on
permission.
Article 979 Persons
can obtain Iranian nationality if they:
1 Have
reached the full age of 18.
2Have
resided five years, whether continuously or intermittently, in Iran.
3 Are
not deserters from military service.
4 Have
not been convicted in any country of non political
major misdemeanours or
felonies.
In the case of Clause 2 of this Article, the period of residence in foreign countries in the
service of the Iranian Government will be considered as residence in Iran.
Article 980 Those
opting for Iranian nationality who have rendered services or notable
assistance to public interests in Iran, or who have Iranian wives by whom they have
children, or who have attained high intellectual distinctions or who have specialised in
affairs of public interest can be accepted as nationals of the Islamic Republic of Iran
without .the observance of the requirement of residence, subject to the sanction of the
Council of Ministers and provided that the Government considers their naturalization to
Iranian nationality to be advisable.
Article 981 This
Article was repealed on 29 December 1982.
Article 982 Those
who have obtained or obtain Iranian nationality will enjoy all rights
recognized for Iranians but cannot attain to the following positions:
1 Presidency
or vice presidency:
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2 Membership
in the Council of Guardians and chief of the Judiciary
3Ministry,
deputy ministry, position of governor general
and governorship.
4Membership
of the Islamic consultative Assembly.
5 Membership
of provincial, or district councils, or municipal councils.
6 Entry
into the service of the Ministry of Foreign Affairs, or attaining any diplomatic
position or being appointed on diplomatic delegations.
7 Judgeship.
8 The
highest rank
in the Army, the Revolutionary Guard and the police.
9Holding
important information and security positions.
Article 983 An
application for naturalization must be submitted to the Ministry of
Foreign Affairs direct or through the Governors or Governors General, and be
accompanied by the following documents
1 Certified
copy of the identity papers of the applicant, his wife and children.
2 Certificate
from the police stating the period of residence in Iran of the applicant, his
clean record, possession of sufficient property or of employment which ensures a
livelihood.
The Ministry of Foreign Affairs will complete, if necessary, the particulars concerning
the applicant and will send the papers to the Council of Ministers for an appropriate
decision rejecting or accepting the application. If the application is accepted a document
of nationality will be delivered to the applicant.
Article 984 The
wife and minor children of those who obtain Iranian nationality in
accordance with this Act will be recognized as Iranian nationals but the wife can submit,
within one year of the date of issue of nationality papers to her husband, and the minor
children can submit, within one year after reaching the full age of 18, a written
declaration to the Ministry of Foreign Affairs accepting the former nationality of her
husband or the father as the case may be , provided, haw ever, that the certificate
mentioned in Article 977 is attached to the declaration of the children whether male or
female.
Article 985 Adoption
of Iranian nationality by the father in no affects the nationality of
his children who may have attained the full age of 18 at the date of his application for
naturalization.
Article 986 A
non Iranian
wife who may have acquired Iranian nationality by
marriage, can revert to her former nationality after divorce or the death of her husband,
provided that she informs the Ministry of Foreign Affairs in writing of the facts but a
widow who has children from her former husband cannot take advantage of this right so
long as her children have not attained the full age of 18. In any case , a woman who may
acquire foreign nationality according to this Article cannot possess properties except
within the limits fixed for foreign nationals . If she possesses landed properties more
than
those allowed in the case of foreign nationals, or if subsequently she comes into
possession by inheritance of landed properties exceeding that limit, she must transfer by
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some way or other to Iranian nationals the surplus amount of landed properties within
one
year from the date of her renunciation of Iranian nationality or within one year from the
date of her acquiring the inherited property. Failing this, the properties in question will be
sold under the supervision of the local Public Prosecutor and the proceeds will be paid to
her after the deduction of the expenses of sale
Article 987 An
Iranian woman marrying a foreign national will retain her Iranian
nationality unless according to the law of the country of the husband the latter’s
nationality is imposed by marriage upon the wife . But in any case, after the death of the
husband or after divorce or separation, she will re acquire
her original nationality
together with all rights and privileges appertaining to it by the mere submission of an
application to the Ministry of Foreign Affairs , to which should be annexed a certificate
of the death of her husband or the document establishing the separation.
Note 1If
the law of nationality of the country of the husband leaves the wife free to
preserve her former nationality or to acquire the nationality of her husband, the Iranian
wife who opts to acquire the nationality of the husband and who has proper reasons for
doing so can apply in writing to the Ministry of Foreign Affairs and the Ministry can
accord her request.
Note 2 Iranian
women who acquire foreign nationality by marriage have not the right to
possess landed properties if this would result in the economic dominance of a foreigner.
The provisions of Article 988 so far as they concern going out of Iran do not apply to the
women above mentioned.
Article 988 Iranian
nationals cannot abandon their nationality except on the following
conditions
1 That
they have reached the full age of 25.
2 That
the Council of Ministers has allowed their renunciation of their Iranian
nationality.
3 That
they have previously undertaken to transfer, by some means or other, to Iranian
nationals, within one year from the date of the renunciation of their Iranian nationality, all
the rights that they possess on landed properties in Iran or which they may acquire by
inheritance although Iranian laws may have allowed the possession of the same
properties
in the case of foreign nationals.
The wife and children of the person who renounces his nationality according to this
Article do not lose their Iranian nationality, whether the children are minors of age,
unless the permission of the Council of Ministers allows them to renounce their
nationality, and
4 That
they have completed their national military service.
Note A Those
who may venture to apply for the renunciation of their Iranian nationality
according to this Article in favour of a foreign nationality must, besides carrying out the
stipulations of Clause 3 of this Article, leave Iran within three months. If they fail to do
so ,the proper authorities will issue Deportation Orders for their expulsion and the sale of
their properties. The above mentioned
prescribed period of grace may be extended
97
subject to the approval of the Ministry of Foreign Affairs up to a maximum period of one
year.
Note B The
Council of Minister may in the course of approving the denunciation of
nationality by an unmarried Iranian woman, approve of the denunciation of the
nationality of her children provided that they are without father or paternal grandfather
and are less than 18 years of age, or otherwise lack legal capacity. Also her children of
less than 25 years of age can denounce their nationality in conformity with their mother’s
for denunciation of nationality
Article 989 In
case any Iranian subject acquired foreign nationality after the solar year
1280 (1901 1902)
without the observance of the provisions of law, his foreign
nationality will be considered null and he will be regarded as an Iranian subject.
Nevertheless, all his landed properties will be sold under the supervision of the local
Public Prosecutor and the proceeds will be paid to him after the deduction of the
expenses of sale. In addition, he will be disqualified to attain the position of Cabinet
Minister or Assistant Minister or of membership of the Legislative Assemblies,
Provincial and District Councils and Municipal Councils, or any other governmental
positions.
Note The
Council of Ministers may on the basis of certain considerations, upon the
request of the Ministry of Foreign Affairs, recognise the foreign nationality of those
persons who subject to this Article. Such persons may be given, with the approval of the
Ministry of Foreign Affairs, leave to visit or reside in Iran.
Article 990 Iranian
subjects who may have personally, or whose fathers may have,
renounced Iranian nationality in accordance with the provisions of law and who may
wish to re acquire
their original nationality can be reinstated in their Iranian nationality
by mere application unless the Government may deem the grant of their application to
be
inadvisable.
Article 991Particulars
and instructions concerning the enforcement of the law of
nationality and the exaction of the administrative fees in, the case of those who may
apply for naturalization as nationals of the Islamic Republic of Iran, or renunciation of
Iranian or retention of original nationality, will be specified in regulations which will
have to be sanctioned by the Council of Ministers.
BOOK 4
Documents of Identity (sijill)
Article 992 The
document of identity of every person will be established by record in
books designated for this purpose.
Article 993 The
following events must be notified to the Census Office during the
proper period and in the way stipulated by special laws and regulations
1 All
births and all abortions which may occur after the 6th month from the date of
conception.
2Marriages,
whether permanent or temporary.
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3 Divorces,
whether permanent or revocable or divorce by way of waiving the
remainder of the period of a temporary marriage.
4The
death of any individual.
Article 994 A
verdict of presumptive death of a continuously absent person which is
issued according to the provisions of Book 5, Vol. 2 of this Act, must be registered in the
Census Books.
Article 995 Alterations
in the entries in the identity books cannot be made unless by
verdict of a court.
Article 996 if
the inaccuracy of the facts declared to the Identification Bureau is
established in a court or the identity of a person entered in identity records is established
or the verdict of presumptive death of a continuously absent person is reversed, the fact
must be entered in the proper identity records.
Article 997 Every
person must possess a family name. The selection of certain special
names which are laid down in the regulations of the Identification Bureau is forbidden.
Article 998 Any
person whose family name has been adopted without right by someone
else can sue that person under the relevant laws and demand that he should change
that
family name.
If a person changes, according to relevant regulations his family name duly registered in
the identification Bureau, every interested person can protest against this act during the
period, and in the manner stipulated in the relevant laws and regulations.
Article 999The
document of birth of the persons whose birth has been declared within
the legal period to the Identification Bureau is considered to be an official document.
Article 1000 Other
matters concerning identity cards will be dealt with in the special
Jaws and regulations.
Article 1001 Iranian
Consular Officers abroad must fulfil in respect of Iranians residing
within their jurisdiction the duties which are under the charge of the Identification Bureau
according to the relevant laws and regulations.
BOOK 5
On Domicile
Article 1002 The
domicile of every person is the place wherein he lives and where also
is the principal centre of his affairs. If the place or residence of a person is different from
the principal centre of his affairs, the latter will be considered as his domicile.
Article 1003 No
one can have more than one domicile.
Article 1004 Change
of domicile will take place on genuine residence in another place
provided that the principal centre of affairs of the person concerned is also transferred to
that place.
Article 1005 The
domicile of a married woman is the same as that of her husband .
Nevertheless where the husband has no known domicile and also when the wife has a
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separate domicile with the consent of her husband or by sanction of a court, she can
have
a separate domicile.
Article 1006 The
domicile of a minor child or an incapacitated person is the same as
that of the natural guardian or legal representative
Article 1007 The
domicile of Government officials is the place where they have their
permanent post.
Article 1008 The
domicile of military persons who are in a garrison is the place of their
garrison.
Article 1009 In
case of grown up persons who ordinarily work with or for others and
who live in the house of their employers or masters, their domicile is the same as that of
their employers or masters
Article 1010 If
in the course of a transaction or agreement both parties or one of the
parties to it have chosen a domicile other than theirs for the fulfilment of the obligations
involved in that transaction or agreement, the domicile in respect to all claims concerning
that transaction will be the domicile appointed. The same will apply if a place other than
their real dwelling place is appointed for the service of papers concerning lawsuits,
summonses warnings.
BOOK 6
Concerning Continuously Absent Persons
Article 1011 A
continuously absent person whose whereabouts are unknown is a
person
who has been absent for a comparatively long duration of time and no news whatever
have been received from him.
Article 1012If
the continuously absent person whose whereabouts are unknown has left
no advice for the administration of his estate or affairs and there may be no person
legally
in a position to take charge of his affairs, the court will nominate a trustee for the
administration of his estate. Application for the appointment of the trustees will only be
accepted from the Public Prosecutor and the persons interested in the matter.
Article 1013 The
court can demand from the trustee whom it appoints to produce a
guarantor or to produce other security.
Article 1014 If
one the heirs of the continuously absent person gives a sufficient
guarantee, the court cannot appoint another trustee and the heir in question will be
appointed in that capacity.
Article 1015 The
duties and responsibilities of the trustee who is to be appointed
according to the foregoing Articles are those fixed for a guardian.
Article 1016 If
both the death and the date of death of the missing person whose
whereabouts are unknown are definitely established, his estate will be distributed among
the heirs existing at the time of death although one or several of them may have died
subsequently to the date of death of the continuously absent person.
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Article 1017 If
the death of a continuously absent person is established without
possibility of ascertaining the date, the court must determine the date on which the death
become unquestionably known and in that case the estate will be distributed among the
heirs who existed at that date.
Article 1018 The
stipulations of the above Article will also be observed in the case
where a judgment of presumed death of the missing person issued.
Article 1019 The
judgment of presumed death of a continuously absent person will be
issued in a case where such a duration of time has elapsed from the date of the last
news
received as to his being alive that such a person would not ordinarily remain alive after
that time.
Article 1020 The
following cases are of those in which a continuously absent person
cannot ordinarily be supposed to be alive:
1 When
10 full years have passed from the date of the last news received as to the life
of
the continuously absent person and at the expiry of the period his age has surpassed
75.
2 When
a person was included in an armed force under any denomination and
disappeared during the war and till three years after the conclusion of peace no news
are
received from him. If the war is not terminated by the conclusion of a peace agreement,
the period in question must be reckoned as five years from the date of conclusion of the
war.
3 When
a man engaged in a sea voyage was on board of a ship which was wrecked in
that voyage and three full years have passed from the date of wreckage of the ship in
question and no news is received from him.
Article 1021 In
the case of the last Clause of the above Article if after the expiry of the
following periods of time from the date of departure of the ship the latter does not arrive
at its destination, or if it has not returned to the port of departure in the case where it has
set out without determined destination and there is no news of its existence, the ship in
question will be considered as destroyed
a For
voyages in the Caspian Sea and inside the Persian Gulf, one year.
b For
voyages in the Sea of Oman, the Indian Ocean, the Red Sea, the Mediterranean
Sea, the Black Sea and the Sea of Azof, two years.
c For
voyages in other cases, three years.
Article 1022 If
a person meets the danger of death or disappears in consequence of
accidents other than those mentioned in Clause 2 and 3 of Article 1020 or if he has been
in an airplane and the latter has disappeared a judgment of his presumed death will only
be issued when five years have passed from the date when he met with the danger of
death and during that period no news have been received showing that the man was still
alive.
Article 1023 In
cases coming under Articles 1020, 1021 and 1022, the court can only
issue the judgment of presumed death of a continuously absent person when a notice
has
been published for three consecutive times each with an interval of one month from the
other in one of the local newspapers and one of highly circulated papers of Tehran
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inviting the persons who may have news of the man to convey their information to the
court and when after the expiry of one year from the date of the first publication of this
notice , the fact that the man is alive is not proved.
Article 1024 If
several persons lose their life in an accident, it will be presumed that
they have all died in one instant.
The stipulation of this Article does not obstruct the enforcement of Article 873 and 874
of Book 1 of this Act.
Article 1025 The
heirs of a continuously absent person whose whereabouts are
unknown can apply to the court, before the issue of the judgment of his presumed death,
asking that his estate may be delivered into their possession, provided, firstly, that the
missing person has not already appointed a person for the administration of his estate
and, secondly, that two full years may have passed from the date that the last news from
the continuously absent person were received and that during the period it has not been
known whether the man is still alive or dead . In respect of this Article, the stipulations of
Article 1023 concerning the publication of a notice and the notice of one year must
categorically be observed.
Article 1026 In
the case of the foregoing Article, the heirs should give guarantee or
sufficient security so that in the event that the continuously absent person returns or that
third parties may have right on the estate they should be responsible for the estate or for
the rights of others in it. The guarantees will remain valid until the verdict of presumed
death is issued
Article 1027 After
the issue of the judgment of presumed death if the continuously
absent person is found, the persons who have taken possession of his estate by
inheritance must return what exists of the estate at the time the continuously absent
person is found, either in original property or the equivalent or the income thereof
Article 1028 The
trustee who is to be appointed for the administration of the estate of a
continuously absent person whose whereabouts are unknown must pay off the property
of
the continuously absent person the cost of living (nafaqeh) of the permanent wife or the
temporary wife of the continuously absent person duration of marriage has not yet
expired and to whom the continuously absent person has undertaken to pay the cost of
living. He should also pay out of the property of the continuously absent person the cost
living of his children. If any difference arises as to the fixing of the amount of cost of
living, the court must determine the amount.
Article 1029 If
a man has been for four years continuously absent with unknown
whereabouts , his wife can apply for a divorce The judge will then grant the divorce
subject to the stipulations of Article 1023.
Article 1030 If
the continuously absent person on returns after the occurrence of the
divorce and before the expiry of the period of Iuddeh’ time, he has the right to cancel the
divorce (ruju) but if the uddeh period has already expired, his right will be extinguished.
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BOOK 6
On Relationship
Article 1031 Relationship
is of two kinds Relationship by blood and relationship by
marriage.
Article 1032 Relationship
by blood involves the following order of precedence first
class: father, mother, children and children of children; Second class grandfathers and
grandmothers, brothers and sisters and their children; Third class : paternal uncles,
paternal aunts, maternal uncles and maternal aunts and their children.
The degree of relationship by blood in each class is determined by the number of
generations in that class.
For example, in the first class, the relation of the father and the mother to their children
comes first and the relationship of children between themselves comes second in the
same way in the second class, the relationship of brother and sister with grandfather and
grandmother comes first and that of the children of brother and sister with grandfather
comes second. And in the third class, the relation of the uncle and the maternal uncle,
and
that of the paternal aunt and the maternal aunt comes first, and that of their children
comes second.
Article 1033 Every
person who is in relation by blood to any degree and in any lineage
with another person will have the same relation by blood in the same degree and lineage
with the husband or wife of that person as the case may be . The father in
law
and the
mother in
law
of a man therefore, constitute his relations of the first degree and the
brother and the sister of the husband of a woman constitute her relations by marriage of
the second degree.
BOOK 7
On Marriage and Divorce
CHAPTER 1
ON MARRIAGE
SECTION 1
On Asking for the Hand in Marriage
Article 1034 It
is lawful to ask for the hand of a woman to whose marriage there is no
obstacle.
Article 1035 A
promise of marriage does not create the matrimonial relation even
though the whole or some of the dowry fixed for payment at the time of marriage
between the two parties may have been paid. Either the man or the woman, therefore,
can, so long as the ceremonial act of marriage has not been pronounced, refuse the
marriage and the other party cannot oblige her or him to contract the marriage or claim
compensation for losses merely owing to the refusal.
Article 1036 Repealed
on 29 December 1982.
103
Article 1037 Every
one of the betrothed parties can , if the proposed marriage is
cancelled, claim the restitution of the presents given to the other party or to the parents
for the marriage in question.
If the presents do not exist in original, the claimant is entitled to ask for their value of the
presents which are ordinarily preserved unless the same presents have been destroyed
without any fault of the party who was in their possession.
Article 1038 The
stipulation of the foregoing Article does not apply as far as it concerns
the payment of equivalent value in a case where the proposed marriage does not take
place in consequence of the death of one of the betrothed persons.
Article 1039 Repealed
on 29 December 1982.
Article 1040Each
one of the parties concerned can, with a view to contracting marriage,
ask the other party to produce a certificate of a doctor showing the freedom of the
person
concerned from serious contagious diseases such as syphilis, gonorrhoea and
consumption.
CHAPTER 2
MEDICAL FITNESS FOR MARRIAGE
Article 1041 Marriage
before the age, of majority is prohibited.
Note Marriage
before puberty by the permission of the Guardian and on condition of
taking into consideration the ward’s interest is proper.
Article 1042 Repealed
on 29 December 1982 . (1) Article 1043 The
marriage of a girl
who has not married previously is dependent on the permission of her father or her
paternal grandfather even if she has reached the full age of majority . If, however, the
father or the paternal grandfather withhold the permission without justifiable reason, the
girl can refer to the Special Civil Court giving full particulars of the man whom she wants
to marry and also the terms of the marriage and the dowry money agreed upon and
notify
her father or her paternal grandfather through that Court of the foregoing particulars The
Court can issue a permission for marriage fifteen days after the date of notification to the
guardian if no response has been received from the guardian to satisfy refusal.
Article 1044 If
the father or the paternal grandfather are not present in the place and
obtaining their permission is customarily impossible and the girl is in need of marriage,
she can marry. Note Registration
of such a marriage in the Marriage Registry shall be
pending on proving the above cited
instances in the Special Civil Court.
CHAPTER 3
ONIMPEDIMENTS TO MARRIAGE
Article 1045 Marriage
with the following relations by blood is forbidden, even if the
relationship is based on mistake or adultery:
1Marriage
with father or grandfather, mother or grandmothers, or to their ancestors to
whatever generation.
104
2 Marriage
with children, or descendants to whatever generation.
3 Marriage
with the brother and sister and their children, or their descendants to
whatever generation.
4 Marriage
with one’s own paternal aunts and maternal aunts and those one’s father,
mother, grandfathers and grandmothers.
Article 1046 Foster
relationship
is the same as relationship by blood as far as
impediments to marriage are concerned, provided that:
Firstly The
milk of the woman takes its source from a legitimate conception.
Secondly The
milk is sucked directly from the breast.
Thirdly The
child has at least had full milk for 24 hours (one night and on day) or for 15
consecutive times without taking in between any other food or milk of another woman.
Fourthly The
child has taken the milk before it has reached the full age of two years
(from its birth): and
Fifthly The
milk taken by the child is from the same woman with the same husband. If,
therefore, a child takes during twenty four
hours some milk from one woman and some
from another, this fact does not debar marriage even if the two women have a common
husband.
In the same way, if a woman has a foster daughter
and a foster In
the same way, if a
woman has a fosterdaughter
and a
foster son
whom she has milked each from the milk belonging to a separate husband,
that son and daughter cannot be considered as foster brother and sister and their
marriage
is not prohibited for this reason.
Article 1047 Marriage
between the following persons is permanently forbidden because
of relationship by marriage.
1 – Marriage, between a man and his mother in.
law
or his grand mother
in
law
of
any degree, whether the relationship is by blood or foster relationship
2 Marriage
between a man and woman who has formerly been the wife of his father or
of one of his grandfathers, or of his son or of one his grandchildren even though the
relationship may be of the foster kind
3 Between
a man with females of descent from his wife, no matter of what degree no
exception being made even if the woman is a foster relation,
provided that the husband
and wife have already consummated the marriage.
Article 1048 Marrying
of two sisters by the same by one man is forbidden even if the
marriage of each one of them is of temporary nature.
Article 1049 No
one can marry the daughter of his brother in
law
or the daughter of
his sister in
law
unless his wife permits him to do so.
Article 1050 Every
person who marries a woman knowing of the existence of marriage
ties binding the wife and of prohibition of his own marriage with that woman, or who
marries a woman who has not yet passed the period of “uddeh” of divorce or of death,
105
with knowledge of the existence of the “uddeh” and the prohibition of the marriage, his
marriage will be null and void and the woman in question will definitely and permanently
be incapable of becoming the wife of that man.
Article 1051 The
provisions of the foregoing Article will also be applicable in the case
where the marriage was solemnized with ignorance of all or some of the facts mentioned
in the foregoing Article, and the marriage has been consummated. In the case of
ignorance, but where matrimonial relations have not taken place, the marriage will be
null and void but marriage between the two does not become permanently prohibited.
Article 1052 Separation
caused by a solemn imprecation (li’an) involves a permanent
bar to the marriage of the parties concerned. Article 1053 A
marriage contract will not
be valid while the party concerned is covered with the pilgrimage garment . If the party
concerned marries with knowledge of the fact that such a marriage is prohibited, the
marriage will be barred forever.
Article 1054 Adultery
with a married woman who has not yet passed the period of
uddeh, will entail a permanent bar to the marriage of the parties concerned.
Article 1055 Sexual
intercourse by mistake or by adultery if preceding marriage is
tantamount to the existence of marriage as far as prohibition of marriage is concerned
but
cannot cause cancellation of the former marriage.
Article 1056 One
who perpetrates a shameful act on a boy cannot marry his mother,
sister, or daughter.
Article 1057 A
woman who has been the wife of a man for three consecutive times and
has been divorced each time will become unlawful as wife to that man unless she is
married by permanent marriage to another man and, after matrimonial relations with that
man, separation occurs between them by divorce or cancellation of the marriage or
death.
Article 1058 The
wife of a person who has been divorced from him nine times, six of
which were revocable divorce, will be illegal as wife to that man for ever.
Article 1059 Marriage
of a female Moslem with a non Moslem
is not allowed.
Article 1060 Marriage
of an Iranian woman with a foreign national is dependent , even
in cases where there is no legal impediment, upon special permission of the
Government.
Article 1061 The
Government can make the marriage of certain Government servants
and officials and students supported by the Government with a female foreign national
dependent upon special permission.
CHAPTER 4
CIRCUMSTANCES NECESSARY FOR
LEGALITY OF MARRIAGE
Article 1062 Marriage
takes place by proposal and acceptance in words which explicitly
convey the intention of marriage.
Article 1063 The
proposal and acceptance may be uttered by the man and woman
themselves or by persons who are legally entitled to perform the act.
106
Article 1064 The
person who performs the act must be sane in mind, of legal age, and
capable of forming, a decision.
Article 1065 It
is a necessary for the validity of a marriage that acceptance should
follow close upon proposal, in accordance with custom.
Article 1066 If
one or both of the parties to the marriage are dumb, the ceremony can
be
conducted by signs made by the dumb person or persons provided that the signs clearly
convey the intention of entering into the contract of marriage.
Article 1067 It
is a necessary condition for the validity of a marriage that the wife and
husband should be so declared that neither party is in doubt as to the identity of the
other.
Article 1068 Making
marriage conditional will render it void.
Article 1069 A
provision in the marriage contract reserving the right of cancellation of
the contract, if made, will be null and void. But in a permanent marriage, a provision
entitling one of the parties withhold the dowry is permissible provided that duration of
this is definitely mentioned . After cancellation of the grant of dowry (sudaq) the
situation will be as if no dowry is mentioned in the contract of marriage.
Article 1070Consent
of the marrying parties is the condition upon which depends the
enforcement of the marriage contract, and if a party showing at first reluctance
authorises
the making of the contract subsequently, the contract will be binding unless the
reluctance is so acute that the reluctant person cannot be considered as having been in
possession of any intention.
CHAPTER 5
DEPUTING A THIRD PARTY FOR GIVING CONSENT TO MARRIAGE
Article 1071 Either
the man or woman can depute a third party with power to contract
the marriage.
Article 1072 If
power is given without conditions as to the identity of the, husband, the
attorney cannot himself marry his principal under that power unless this permission is
explicitly given to him in the power of attorney.
Article 1073 If
the attorney does not observe what his principal has laid down in
connection with the person or the dowry or other particulars, the authenticity of the
marriage will depend upon corroboration from the principal.
Article 1074 The
provisions of the preceding Article will also be binding where the
power was without any reservation and the attorney did not act according to the best
interests of his principal.
CHAPTER 6
ON TEMPORYY MARRIAGE
Article 1075 Marriage
is called temporary when it is for a limited period of time.
Article 1076 The
duration of the temporary marriage must be definitely determined.
107
Article I077 In
the case of temporary marriage , provisions concerning inheritance of
the wife and her dowry are the same as fixed in the Chapter on inheritance’ and in the
following Chapter.
CHAPTER 7
ON THE DOWRY (MAHR)
Article 1078 Anything
which can be called property and which can be owned and
possessed can be designated as a marriage portion.
Article 1079 The
marriage portion must be known to the marrying parties to the extent
that their ignorance is removed.
Article 1080 Fixing
of the amount of marriage portion depends upon the mutual
consent of the marrying parties.
Article 1081 If
a condition is laid in the marriage act that if the marriage portion is not
paid within a fixed period that marriage will be cancelled, the marriage and the marriage
portion will remain binding and authentic but the condition will be null and void.
Article 1082 Immediately
after the performance of the marriage ceremony the wife
becomes the owner of the marriage portion and can dispose of it in any way and manner
that she may like.
Article 1083 A
duration of time or instalments can be fixed for the payment of the
marriage portion, as a whole or in parts.
Article 1084 If
the marriage portion consists of a designated property and it is found out
that before the celebration of the marriage, that property was defective, or that after the
marriage celebration and before the delivery of the property it becomes defective or it
was destroyed
Article 1085 So
long as the marriage portion is not delivered to her, the wife can refuse
to fulfil the duties which she has to her husband provided, however, that the marriage
portion is payable at once. This refusal does not debar her from right of maintenance
expenses.
Article 1086 If
the wife proceeds to fulfil the duties that she has towards her husband by
her own free will, she cannot subsequently avail herself of the provisions of the foregoing
Article, but never the less she will not forfeit the right that she has for demanding the
payment of the marriage portion due to her.
Article 1087 If
a marriage portion is not mentioned, or if the absence of marriage
portion is stipulated in a permanent marriage, that marriage will be authentic and the
parties to it can fix the marriage portion subsequently by mutual consent. If previous to
this mutual consent matrimonial intercourse takes place between them, the wife will be
entitled to the marriage portion ordinarily due.
Article 1088 In
the case of the foregoing Article, if one of the marrying parties dies
before the fixing of the marriage portion and before the consummation of marriage, the
wife will not be entitled to any marriage portion.
108
Article 1089 Authority
for fixing the marriage portion can be entrusted to the husband
or a third party, in which case both of them can fix it at any amount they may wish.
Article 1090 If
the authority for fixing the marriage portion is vested in the wife, she
cannot fix an amount which exceeds reasonable marriage portion.
Article 1091 In
fixing of the reasonable marriage portion the status of the wife in
respect of her family’s station and other circumstances and peculiarities concerning her
in
comparison with her equals and relatives and also the customs of the locality, etcetera,
must be considered.
Article 1092 If
the husband divorces his wife before the consummation of marriage, the
wife be entitled to half of the marriage portion and if the husband has already paid more
than half of the marriage portion he has the right to demand the return of the surplus, in
original, in the equivalent, or in va1ue.
Article 1093 If
no marriage portion is mentioned in the act of marriage and the husband
divorces his wife before the consummation of marriage and the fixing of the marriage
portion, the wife is entitled to a reasonable marriage portion, and if she is divorced after
the consumption of marriage, she will be entitled to the equivalent of marriage portion.
Article 1094The
status of the man in respect of wealth or poverty will be considered in
fixing the reasonable marriage portion.
Article 1095 Absence
of marriage portion in the act of a temporary marriage will render
the contract void.
Article 1096 The
death of the wife in a temporary marriage during the period of
marriage will not cause the forfeiture of the marriage portion; the same will be true if the
husband did not have any relations with her up to the end of the period of the marriage.
Article 1097 If
the husband waives his rights to the whole period of marriage in a
temporary marriage before having any relations with the wife, he must pay half of the
marriage portion.
Article 1098 If
the marriage, whether temporary or permanent, was void, and there has
not been any matrimonial relations, the wife will not be entitled to any marriage portion
and the husband can demand the refund of the marriage portion if it has been settled
Article 1099 If
the wife was ignorant of the fact that the marriage was unauthentic, and
if in such case matrimonial relations have occurred, the wife will be entitled to a
reasonable marriage portion.
Article 1100 If
the specified marriage portion is unknown or if it is not of such a nature
that it can be owned or if it belongs to reasonable marriage portion and in the third case
to
the equivalent of the value of the property which proved to be that of a third party, unless
the latter authorizes the transfer.
Article 1101 If
the marriage is cancelled before matrimonial relations for any reason,
the wife is not entitled to any marriage portion . If the reason of cancellation is
impotency, the wife will be entitled to half the marriage portion notwithstanding the
cancellation of the marriage.
109
CHAPTER 8
RECIPROCAL DUTIES AND RIGHTS OF PARTIES
TO A MARRIAGE
Article 1102 As
soon as marriage takes place in due form, relations of matrimony will
automatically exist between the marrying parties and rights and reciprocal duties of
husband and wife will be established between them.
Article 1103 Husband
and wife are bound to establish friendly relations.
Article 1104 Husband
and wife must cooperate with each other for the welfare of their
family and the education of their children.
Article 1105In
relations between husband and wife; the position of the head of the
family is the exclusive right of the husband.
Article 1106 The
cost of maintenance of the wife is at the charge of the husband in
permanent marriages.
Article 1107 Cost
of maintenance includes dwelling, clothing, food, furniture in
proportion to the situation of the wife, on a reasonable basis, and provision of a servant if
the wife is accustomed to have servants or if she needs one because of illness or
defects
of limbs.
Article 1108 If
the wife refuses to fulfil duties of a wife without legitimate excuse, she
will not be entitled to the cost of maintenance.
Article 1109 Cost
of maintenance of a divorced wife during the period of “uddeh” is to
be borne by the husband, unless the divorce has taken place because of disobedience .
But if the uddeh arises from the cancellation of the marriage or a final divorce, the wife is
not entitled to cost of maintenance, unless she is with child from her husband in which
case she 1 be entitled to cost of maintenance till her child is born.
Article 1110 The
wife is not entitled to cost of maintenance if she is passing through the
uddeh period due to the death of her husband.
Article 1111 The
wife can refer to the court if her husband refuses to provide for her
maintenance. In such a case the court will fix the amount and will compel the husband to
pay it.
Article 1112 If
the enforcement of the provisions of the foregoing Article is impossible ,
the provisions of Article 1129 must be followed.
Article 1113 In
the case of a temporary marriage the wife is not entitled to the cost of
maintenance, unless provision has been specially made for this, or the marriage has
been
arranged on this condition
Article 1114The
wife must stay in the dwelling that the husband allots for her unless
such a right is reserved to the wife.
Article 1115 If
the existence of the wife and husband in the same house involves the
risk of bodily or financial injury or that to the dignity of the wife, she can choose a
separate dwelling: and if the alleged risk is proved the court will not order her to return to
110
the house of the husband and, so long as she is authorized not to return to the house,
her
cost of maintenance will be on the charge of her husband.
Article 1116 In
the case of the foregoing Article, so long as litigation is not concluded
between the married couple, the dwelling of the wife will be fixed by mutual consent of
both parties and failing such consent, the court will fix the dwelling after duly obtaining
the views of near relatives, and in the absence of relatives the court itself will fix a
suitable dwelling.
Article 1117 The
husband can prevent his wife from occupations or technical work
which is incompatible with the family interests or the dignity of himself or his wife.
Article 1118 The
wife can independently do what she likes with her own property.
Article 1119 The
parties to the marriage can stipulate any condition to the marriage
which is not incompatible with the nature of the contract of marriage, either as part of the
marriage contract or in another binding contract: for example, it can be stipulated that if
the husband marries another wife or absents him self during a certain period, or
discontinues the payment of cost of maintenance, or attempts the life of his wife or treats
her so harshly that their life together becomes unbearable, the wife has the power, which
she can also transfer to a third party by power of attorney to obtain a divorce herself
after
establishing in the court the fact that one of the foregoing alternatives has occurred and
after the issue of a final judgment to that effect.
SECTION 2
On Dissolution of Marriage
Article 1120 Marriage
may be dissolved by cancellation, by divorce, or by waiver of the
remaining period in the case of a temporary marriage.
CHAPTER 1
ON THE POSSIBILITY OF CANCELLATION
OF MARRIAGE
Article 1121 Madness
of either of the married couple, provided that it is settled, whether
it is permanent or recurrent, will give the other person the right of cancellation.
Article 1122 The
following defects in man will give the woman the right to cancel the
marriage
1 Castration.
2 Impotency,
provided he has not even once performed the matrimonial act.
3 Amputation
of the sexual organ to the extent that he is unable to perform his marital
duty.
Article 1123 The
following defects in a wife bring about the right for a man to cancel
the marriage:
111
1 Protrusion
of the womb (qaran).
2Black
leprosy (juzam).
3 Leprosy
(baras).
4Connection
of the vaginal and anal passages (ifza).
5 Being
crippled.
6Being
blind in both eyes.
Article 1124 The
defects of the wife entitle the man to a right of cancellation of
marriage if they existed at the time of marriage.
Article 1125 Madness
and impotency create the right for the wife to cancel the
marriage even if they occur after the date of the marriage.
Article 1126 Any
one of the married couple who was cognisant of the existence of the
defects above mentioned in the other party before the marriage was celebrated , has no
right after that date to cancel the marriage.
Article 1127 If
the husband contracts a venereal disease after the performance of the
marriage act, the wife have the right to refuse to have any sexual relations with him and
this refusal will not debar her from the right to cost of maintenance.
Article 1128 If
a special qualification is mentioned , as a condition of the marriage, to
exist in one of the marrying parties and if after the marriage it is found out that the party
concerned lacks the desired qualification, the other party has the right to cancel the
marriage.
The foregoing is true whether the qualification is mentioned explicitly in the marriage
contract or whether the marriage has been performed with the qualification understood
mutually by the parties concerned.
Article 1129 If
the husband refuses to pay the cost of maintenance of his wife, and if it
is impossible to enforce a judgment of the court and to induce him to pay the expenses,
the wife can refer to the judge applying for divorce and the judge will compel the
husband to divorce her.
The same stipulation will be binding in a case where the husband is unable to provide for
the maintenance of the wife.
Article 1130 In
the following circumstances, the wife can refer to the Islamic judge and
request for a divorce. When it is proved to the Court that the continuation of the marriage
causes difficult and undesirable conditions, the judge can for the sake of avoiding harm
and difficulty compel the husband to, divorce his wife. If this cannot be done, then the
divorce will be made on the permission of the Islamic judge.
Article 1131 The
option of cancellation of marriage must be exercised immediately and,
if the party who is entitled to the option does not cancel the marriage after becoming
cognisant of the reason upon which he could cancel the marriage, he forfeits the option,
provided also that he had full knowledge of the existence of the option and its urgent
character. Determination of the duration of time during which the option can remain valid
depends upon custom and usage.
112
Article 1132 The
observance of the arrangements stipulated in the case of a divorce is
not obligatory in a case of cancellation of marriage.
CHAPTER 2
ON DIVORCE 1 On
General Considerations
Article 1133 A
man can divorce his wife whenever he wishes to do so.
Article 1134The
divorce must be performed in the actual form of utterance and in the
presence of at least two just men who must hear the actual form of divorce.
Article 1135 Divorce
must be in clear and precise wording, a conditional divorce is null
and void.
Article 1136 The
divorcer must be of legal, must be in possession of his faculties, must
intend the act and must be free in his action.
Article 1137 The
guardian of a permanently made person, can divorce the wife of the
latter if the interests of the person under his custody allow him to do so.
Article 1138 The
actual ritual utterance of the divorce can be performed by an attorney.
Article 1139 Divorce
is specially appointed for cases of permanent marriage: a
temporary wife is relieved from marriage by the expiry of the period of marriage or by
waiver of the remaining period by her husband.
Article 1140It
is not proper to divorce a wife during her monthly period or during the
convalescent period after childbirth unless when the wife is pregnant or when the divorce
occurs before matrimonial relations with her, or when the husband is absent so that he
cannot obtain information concerning her monthly period.
Article 1141 It
is not proper to divorce a wife between two monthly periods during
which intercourse has taken place unless the wife is pregnant or is incapable of
conception.
Article 1142The
divorce of a wife who although of child bearing
age has no monthly
period, will be valid only when three months have passed from the date of the last
matrimonial relations with her.
2. On Various Forms of Divorce
Article 1143 The
are two forms of divorce, irrevocable divorce and revocable divorce.
Article 1144 After
an irrevocable divorce the husband has not the right to renounce his
intention of divorcing.
Article 1145 A
divorce is irrevocable in the following instances
1 A
divorce performed before the occurrence of matrimonial relations
2Divorce
of a wife who is incapable of conception.
.3 (
a) a divorce which a wife achieves by giving a consideration to her husband and
(Khul’a) and (b) a divorce by mutual consent (mubarat), as long as the wife has not
demanded the return of the c3nsideration.
113
4 A
third divorce, performed after three consecutive marriages (of the same parties)
whether by mere renouncement by the husband of his desire to divorce the wife or by a
new marriage between the two parties.
Article 1146 A
Khul’a divorce occurs when the wife obtains a divorce owing to dislike
of her husband, against property which she cedes to the husband. The property in
question may consist of the original marriage portion, or the monetary equivalent thereof,
whether more or less than the marriage portion.
Article 1147 – A “Mubarat” divorce occurs when the dislike is mutual in which case the
compensation must not be more than the marriage portion.
Article 1148 The
husband has the right to renounce divorce in a revocable divorce
provide the period of “Iddah” has not expired.
Article 1149 Return
to the wife after divorce can be effected by any word or deed which
may convey the idea, provided that it is based on an intention to do so.
3. On wife’s period of Waiting (Iddah)
Article 1150 Iddah
consists of a period during which a woman whose matrimonial bond
has been dissolved cannot marry.
Article 1151 The
period of Iddah for a divorce or for the dissolution of a marriage
consists of three consecutive monthly periods of a woman unless the woman concerned
though of child bearing age has no monthly period, in which case the period of Iddah will
be three months.
Article 1152 The
period of Iddah for divorce or dissolution of marriage or waiver of the
remaining period or its expiry in the case of temporary marriage for a non pregnant
woman is the expiry of two monthly periods unless contrary to the nature of her age, she
no such periods, in which case the period will be 45 days.
Article 1153 The
period of Iddah for divorce or dissolution of marriage act or waiver or
expiry of the period of marriage in the case of a woman who is pregnant will be until she
given birth to a child.
Article 1154The
period of Iddah in the case of death (of husband) in both permanent
and temporary marriages will be four months and ten days, unless the wife is pregnant
when the uddeh comes to an end with the birth of the child provided that the interval
between the death of the husband and the birth of the child is longer than four months
and
10 days: if not, the period of uddeh will be the same four months and 10 days.
Article 1155 There
is no Iddah in the case of a wife who has not had any matrimonial
intercourse with her husband, or in the case of a wife beyond the age of conception who
is not affected by any uddeh for divorce or for dissolution of marriage. But the uddeh for
death must be observed in both cases.
Article 1156 The
wife of a continuously absent husband whose whereabouts are
unknown, if divorced by a judge, must observe uddah for death, starting from the date on
which the divorce was granted
Article 1157A
woman who has had matrimonial relations by way of mistake with
someone must observe the uddah laid down in cases of divorce.
114
BOOK 8
On Children
CHAPTER 1
ON PARENTAGE
Article 1158 Any
child born during married life belongs to the husband provided that
the interval between intercourse and the birth of the child is not less than 6 months and
not more than 10 months.
Article 1159 Any
child born after the dissolution of marriage belongs to the husband
provided that the mother has not yet married again and that not more.
Article 1160 If
the marriage is dissolved after matrimonial intercourse and the wife has
married again and a child is born to be, the child belongs to the husband who can be
identified as the child’s father according to the foregoing Articles. If the child could be
attributed to both husbands according to the foregoing Articles, the child belongs to the
second husband unless definite indications show otherwise.
Article 1161 In
the cases coming under the foregoing Articles, if the husband has
explicitly or implicitly admitted that he is the father, his subsequent denial of this will be
of no validity.
Article 1162 In
the cases coming under the foregoing Article, the plea of repudiation of
the child can only be preferred within the delay ordinarily admissible for the preferment
of such claims after the father known of the birth of the child. The plea will in any case
not be heard after the expiry of two months from the date that the husband was informed
of the birth of the child.
Article 1163 In
a case where the husband did not know the real date of birth of the child
and was misguided by a wrong date according to which the child would belong to him
and when the husband is informed subsequently of the real date of birth, the period of
limitation for the plea of repudiation of the child is two months from the date on which he
discovered the fraud.
Article 1164 The
provisions of the foregoing Articles will also be applicable in the case
of a child born from sexual intercourse when one party was in error as to the other’s
identity , although the mother may not have made any mistake.
Article 1165 A
child born after such mistaken sexual intercourse will belong to the
party who made a mistake and if both parties were in error child belongs to both of them.
Article 1166 If
marriage between the parents of a child is illegitimate owing to the
existence of any legal impediment, the relation of the child to that one of the parents who
was ignorant of the existence of the impediment is legitimate, and its relation to the other
party is illegitimate. If both parents were ignorant of the impediment, the relationship of
both of them to the child is legitimate.
Article 1167 A
child born of adultery shall not belong to the adulterer.
115
CHAPTER 2
ON MAINTENANCE AND EDUCATION OF THE CHILDEN
Article 1168 Maintenance
of children is both the right and duty of the parents.
Article 1169 A
mother has preference over others for two years from the birth of her
child for the custody of the child and after the lapse of this period custody will devolve
on the father expect in the case of a daughter who will remain under the custody of the
mother till 7 years.
Article 1170 If
the mother becomes insane or marriage another man during her period
of custody, the custody will devolve on the father.
Article 1171If
one of the parents dies, the custody will be the duty of the surviving
although the deceased be the father and he may have appointed a guardian for the
child.
Article 1172 Neither
of the parents can refuse to maintain the child during the time
when he or she is responsible for its custody If he or she does so, the court must induce
him or her, on application by the other party or the guardian or one of the relatives or the
Public Prosecutor, to assume the custody . If such enforcement is impossible or
ineffective the court must arrange the custody at the expense of the father, or of the
mother in the event of the death of the former.
Article 1173 If
the physical health or moral education of the child is endangered as a
result of carelessness or moral degradation of the father or mother who are in charge of
its custody the court can take any decision appropriate for the custody of the child on the
request of its relatives or its guardian or the Public Prosecutor.
Article 1174 If
the parents of the child do not live in the same house owing to divorce or
any other reason, either of the parents who is not in charge of custody of the child has
the
right to visit the child. Determination of the time and place of visit and other particulars
will be decided by the court if there is any dispute between the parents about them.
Article 1175 A
child cannot be taken from the parents or the father or the mother who is
in charge of its custody except in cases where just fiction exists for doing so.
Article 1176 The
mother is not obliged to suckle the child unless the child cannot be fed
except with the milk of its mother.
] Article 1177 A
child must obey its parents and must respect them whatever its age.
Article 1178 Parents are bound to take such measures as circumstances and their
means
allow for the education of their children. They must not leave their talents undeveloped.
Article 1179 Parents
are entitled to punish their children but they must not abuse this
right by punishing their children beyond the limits of correction.
CHAPTER 3
ON THE NATURAL GUARDIANSHIP OF THE FATHER AND PATERNAL
GRANDFATHER OVER THE CHILD
Article 1180 A
minor child is under the guardianship of its father or paternal
grandfather. Such is also the case with a immature or insane child provided that the
immaturity or mental unfitness continues from the age of minority.
116
Article 1181 Either
the father or the paternal grandfather has the right of guardianship
over his children.
Article 1182 If
the child has both father and paternal grandfather and one of them
becomes himself incapacitated or is prevented by some reason or other from
administering the estate of his ward, his legal guardianship will cease.
Article 1183 In
all matters pertaining to the estate, and the civil and financial concerns
of the ward, the guardian will be his or her legal representative.
Article 1184 If
the natural guardian of the child is unworthy of the administration of the
estate of his ward or if he misappropriates property, the court will, on application by the
relatives of the child or on the request of the Public Prosecutor who has to be a party to
the suit, and after the establishment of the incapacity or dishonesty of the guardian, also
appoint a financial trustee to work with the guardian. This provision will be applicable in
a case where the guardian of the child is unable to administer the estate of his ward
owing
to old age or sickness or similar reasons.
Article 1185 If
the natural guardian of the child becomes incapacitated, the Public
Prosecutor is obliged to appoint a guardian for the child according to the regulations
governing the nomination of guardians.
Article 1186 In
cases where strong indications exist showing the dishonesty of the
natural guardian in respect of the estate of his ward, the Public Prosecutor is obliged to
apply to the Court of First Instance requesting that his actions may be investigated. The
court will examine the complaint and will act according to Article 1184 if his dishonesty
is proved.
Article 1187 If
the only natural guardian of a child cannot administer the estate of his
ward owing to absence or imprisonment or owing to any other reason, and if he has not
nominated anyone else to represent him, the court will appoint provisionally a guardian
on the proposal of the Public Prosecutor for taking charge of the estate and attending to
all matters pertaining to it.
Article 1188 Either
the father or the paternal grandfather can appoint after the death of
the other, an executor for the child under his guardianship in order that the executor may
attend, after his death, to the bringing up and the education of the children and may
administer their estate
Article 1189Neither
the father nor the paternal grandfather can appoint an executor for
his ward while the other is still living. Article 1190 A
father or paternal grandfather can
authorize the guardian to nominate another guardian for his ward after the guardian’s
death.
Article 1191 If
the guardian appointed by the natural guardian does not take steps for
the maintenance or the education of his ward or for the administration of his estate or if
he abstains from fulfilling his duties he will be discharged.
Article 1192 A
Moslem guardian cannot appoint a non Moslem
guardian for his ward.
Article 1193As
soon as a child reaches the age of maturity, he will cease to be under
ward ship and if he becomes subsequently mentally deficient or insane, a guardian will
be
appointed for him.
117
Article 1194The
father, the paternal grandfather and the guardian appointed by one of
them will be called the “special guardian” of the child.
BOOK 9
On the Family
CHAPTER 1
ON OBLIGATION OF MAINTENANCE
Article 1195 Provisions
for the maintenance of the wife are those stipulated in Chapter
1, Part 1 of Book 7 and those stipulated in this Chapter.
Article 1196 Only
relatives by blood in a direct line ascending or descending are under
reciprocal obligation to provide maintenance for each other.
Article 1197A
person is entitled to maintenance expenses if he or she is poor and
cannot
earn a living by adopting an occupation.
Article 1198 A
man is only obliged to maintain another if he is in a position to do so,
that is to say he can provide such maintenance without thereby causing himself distress.
To determine whether a man can maintain another his obligations and his manner of life
must be taken into consideration.
Article 1199 Maintenance
of children is the duty of the father on his death or his
incapacity for maintenance, this duty devolves on the paternal grandfathers, the nearer
of
his kin coming before the father. In the absence of a father or paternal grandfathers or in
the event of their incapacity, the duty of maintenance devolves on the mother.
If the mother is dead also or is unable to maintain the child, the duty will devolve on
maternal grandfathers and the grandmothers and paternal grandmother who are
sufficiently wealthy to provide maintenance, giving preference to the nearer of kin over
the father. If a number of the grandparents are similar in degree of kinship, the
maintenance expenses must be paid by them in equal shares.
Article 1200 Maintenance
expenses of parents must be paid by the nearest related
child
or grandchild in the order of kinship.
Article 1201 If
a person has relatives both ascending and descending in the direct line
who are equally under an obligation to provide for his living, the relatives in question
must share the expenses in equal shares. It follows therefore that if the person who is to
be maintained has father, mother and direct children his expenses should be shared in
equal portions by his father and children, without the mother being required to pay any
share. In a like manner if a person who is to be maintained has a mother and direct
children, his expenses must be borne in equal shares by the mother and the children.
Article 1202 If
the relatives who are to be maintained are numerous and the supporter
cannot pay for them all, the claim of the relatives in the descending direct line has
priority over that of relatives in the ascending direct line.
Article 1203 If
there are a wife and one or more relatives who are to be supported, the
claim to support of the wife precedes that of others.
118
Article 1204 Maintenance
of relatives consists of providing dwelling, clothing, food and
furniture to the extent of bare necessities and subject to the means of the person who
provides the maintenance.
Article 1205 In
cases of absence or refusal to pay maintenance, if it is impossible to
oblige the person whose duty it is to pay the maintenance, the court can, when persons
entitled to maintenance bring claim, place from the assets of the absentee or the refuser,
amount of the maintenance , at their own disposal or at the dispose of their supporter
(s):
and in the event that the assets of the absentee or the refuser are not available, his wife
or
another person may on the court’s authorization pay the maintenance as loan and claim
it
from the absentee or the refuser.
Article 1206 A
wife can always and in any case prefer a claim for her past expenses,
and her right to these expenses is preferential. In the event of bankruptcy or insolvency
of the husband her dues must be paid before any liquidation payment is arranged.
Relatives, however, entitled to provision of maintenance expenses can claim only their
expenses for a future period.
BOOK 10
Regarding Guardianship and Tutorship
CHPTER 1
ON GENERAL CONSIDERATION
Article 1207 The
following persons are considered as under disability and are forbidden
to take possession of their property and their pecuniary rights:
1 Minor
children.
2 Persons
who have not matured.
3 Lunatics.
Article 1208 By
the words “persons who have not matured” is meant persons whose
method of dealing in their property and rights is not in accordance with reason.
Article 1209 Repealed
on 29 December 1982.
Article 1210 No
one, when reaching the age of majority, can be treated as under
disability in respect of insanity or immaturity unless his immaturity or insanity is proved.
Note 1 the
age of majority for boys is fifteen lunar years and for girls nine lunar years.
Note 2 The
properties which had belonged to a minor who has now reached the age of
majority may be given to him only if it has been proved that he has full legal capacity.
Article 1211 Lunacy,
to whatever degree, incurs disability.
Article 1212 The
acts and words of minor children are null and void and of no effect so
far as their acts and words relate to the IT property and pecuniary rights . A
discriminating minor child, however, can take possession of property for no
consideration, such as accepting a gift, or a free transfer, or assuming possession of
unclaimed property.
119
Article 1213 A
permanent lunatic and a periodical lunatic in his state of lunacy cannot
make any intervention whatever in his property and his pecuniary rights even with the
permission of his guardian. But judicial acts made by a periodical lunatic during a period
of sanity are binding provided that his sanity is established.
Article 1214 Transaction
and legal acts performed by a person not of age are not
binding except with the permission of his natural guardian or his guardian, whether the
permission has already been given or will be given after the transaction is made.
Never the less, all kinds of possessory acts against no consideration are binding even
without permission.
Article 1215 If
anyone hands certain property to the possession of a non discriminating
minor child or a lunatic, the minor child or the lunatic shall not be held responsible for
damage or loss to the property.
Article 1216 In
case the minor child, lunatic or immature person, causes loss to another
person ,he shall be considered a guarantor for the same.
Article 1217 The
management of the property of minor children and insane and
immature persons is entrusted to the care of their guardian, as is laid down in Part 3 of
Book 8 and the subsequent Articles.
CHAPTER 2
REGARDING THE APPOINTMENT OF A GUARDIAN AND
THE PROCEDURE RELATING THERETO
Article 1218 Guardians
will be appointed for the following persons:
1 For
minor children not having a “special guardian’s.
2 For
insane and immature persons whose insanity, or immaturity directly followed
their attaining full age and who have no “special guardian”.
3 For
insane and immature persons whose insanity or immaturity did not follow directly
after attaining full age.
Article 1219 In
the case mentioned in the preceding Article regarding the appointment
of a guardian for their children each of the parents is bound to report the matter of the
Public Prosecutor of the district of his residence or to his representative, and to request
him to take necessary action for the appointment of a guardian.
Article 1220 In
the absence of the parents of their lack of knowledge it is the duty of the
relatives who are living in the same place as the person needing a guardian to perform
the
task mentioned in the preceding Article.
Article 1221 If
a person for whom a guardian should be appointed as stipulated in
Article 1218, has a wife or a husband, the wife or husband is also bound to carry out the
formality prescribed in Article 1219.
Article 1222 In
any case where the Public Prosecutor happens to know in any way of
the existence of a person for whom a guardian ought to be appointed in accordance with
120
Article 1218, he (the Public Prosecutor) would have to refer the matter the Special Civil
Court and introduce to the court those persons whom he considers fit to be guardians.
The Special Civil Court will then appoint one or several persons as guardian and issue a
decision of appointment. The court also can appoint one or several persons to act as
supervisors. In this case the court would have to fix the limits of the supervisor’s
authority.
In case the court does not consider reliable the person thus introduced, it will ask for
other persons to be introduced by the Office of the Public Prosecutor.
Article 1223 With
regard to lunatics the Public Prosecutor should refer the matter
beforehand to the experts and submit the views of the latter to the Special Civil Court. In
the event of lunacy being established, the Public Prosecutor will refer the matter to Court
for the appointment of the guardian. In respect of immature persons also, the Public
Prosecutor is bound to obtain adequate information regarding their lack of maturity
through wellinformed
people and to file a suit in the Special Civil Court should he (the
Public Prosecutor) find the immaturity indisputable, and to refer the matter to the Special
Civil Court for the appointment of a guardian after the issue of a decision regarding the
immaturity.
Article 1224 The
safeguarding as well as the superintendence of the property of minor
children, lunatics and immature persons shall be entrusted to the care of the Public
Prosecutor so long as no guardian has been appointed for them.
The procedure relating to the safeguarding and superintending of the property by the
Public Prosecutor shall be designated by virtue of regulations of the Ministry of Justice.
Article 1225 As
soon as a decision declaring the lunacy or immaturity of a person is
issued and a guardian is appointed by the Ecclesiastical Court for the said person, the
Public Prosecutor can declare the state of disability.
The declaration of the state of disability of any person who may, in view of the
conditions of his property, become the subject of comparatively important transactions,
is
obligatory.
Article 1226 The
names of persons who, after reaching the old age and maturity
become
under disability because of lunacy or weakness of intellect should be put down in a
special register. This book can be seen by anybody.
Article 1227 The
courts, departments and notariespublic
can recognize as guardians
only those persons whose appointment is made by virtue of the law through the Court.
Article 1228 Outside
Iran the Iranian Consular Officers have the right to appoint
temporary guardians in respect of the Iranians for whom guardians will have to be
appointed in accordance with Article 1218 and who are residing or staying within the
limits. of their area of jurisdiction . They must, by the day following the appointment of
guardians, send the documents showing their action to the Ministry of Justice through
the
Ministry of Foreign Affairs. The appointment of the said guardian will only become
definite when the Special Civil Court of Tehran corroborates the decision taken by the
Consular Officer.
121
Article 1229 The
duties and authority which are prescribed by virtue of the relevant
laws and regulations in respect of the intervention Public Prosecutors in matters
concerning minor children, lunatics, and immature persons are, So far as these matters
concern foreign countries, entrusted to the care of Consular Officers.
Article 1230 If
any stipulation is made contrary to the provisions of the preceding
Article in the treaties and agreements concluded between the Iranian Government and
the
Government in whose consular Officer concerned is exercising his duties, the officers
concerned shall put into force the provisions of the two Articles so far as they do not
conflict with the stipulations of the agreement or treaty.
Article 1231 The
following persons should not be appointed as guardians:
1 Those
persons who are themselves under guardianship.
2 Those
persons who, by reason of perpetrating a felony or the following
misdemeanours been convicted by a final judgment
Theft , abuse of confidence (breach of trust) , swindling embezzlement, rape or immoral
acts, offences against children, and fraudulent bankruptcy.
3 Persons
for whom orders of bankruptcy are issued and whose bankruptcy has not yet
been settled.
4Persons
who are notorious for their immoral acts.
5A
person who either in his own name or in that of his relatives of the first degree has a
claim against the person under incapacity.
Article 1232 The
relatives of the person under capacity shall have priority over others in
the matter of guardianship, if they are competent.
Article 1233 A
woman cannot accept guardianship without, the consent of her husband.
Article 1234 When
the court appoints more than one person as guardian, it can
determine the duties of the guardians separately.
CHAPTER 3
POWERS, DUTIES AND RESPONSIBILITIES OF THE
GUARDIAN AND THE LIMITS THEREOF
SUPERINTENDENCE OF THE PUBLIC PROSECUTOR
OVER THE MATTERS RELATING TO MINOR CHILDREN,
LUNATIC AND IMMATURE PERSONS
Article 1235 The
protection of the person who is under guardianship as well as his legal
representation in all matters relating to his property and financial rights, are entrusted to
the guardian.
Article 1236 The
guardian is bound, before interfering in the matters relating to
financial affairs of the person placed under guardianship to make an inventory of all the
latter’s property and to send a copy of same duly signed by himself to the Public
122
Prosecutor in whose district the person under guardianship resides, and the Public
Prosecutor or his representative should make necessary inquiries with regard to the
amount of the property of the ward.
Article 1237 The
Public Prosecutor or his representative should, after seeing the list of
the property belonging to the person under guardianship, fix the amount of the annual
expenses of the said person as well as the sum which may be necessary for the
management of the said property. The guardian cannot spend more than the said
amounts
unless with the permission of the Public Prosecutor.
Article 1238 The
guardian who fails to safeguard the property of the person placed
under guardianship, will be held responsible for negligence or excessive use which may
be incurred by the shortage or destruction of the said property even if the loss or wasting
be not caused by negligence or excessive use on the part of the guardian.
Article 1239 In
case it is proved that the guardian deliberately failed to put down in the
list of the property of the person placed under guardianship some part of the same and
caused this part of property not to be entered in the list, he (the guardian) shall be held
responsible for any damages and losses which may be caused on that account to the
person placed under guardianship. Further, should it be proved that the said act was
based
on bad faith, the guardian shall be dismissed.
Article 1240 The
guardian cannot transact any business on behalf of the ward between
himself and the ward, whether by transferring to himself the property of the ward or by
transferring his own property to the latter.
Article 1241 The
guardian cannot sell, mortgage or dispose of the immovable property
of the ward in such a way that he (the guardian) becomes indebted to his ward unless in
the interests of the ward and with the approval of the Public Prosecutor. In the latter
case
an indispensable condition for the approval of the Public Prosecutor consists in the
financial standing of the guardian Likewise, he (the guardian) cannot raise any
unnecessary or needless loan for the person placed under guardianship unless with the
approval of the Public Prosecutor.
Article 1242 The
guardian cannot settle a lawsuit relating to the ward by compromise
unless with the approval of Public Prosecutor.
Article 1243 In
case of existence of adequate reasons the Public Prosecutor can ask
the
Special Civil Court to require from the guardian certain guarantees regarding the
management of the property of the ward. The nature of these guarantees is to be fixed
by
the court. If the guardian is not prepared to give the required guarantees, he will be
dismissed from the guardianship.
Article 1244 The
guardian should submit to the Public Prosecutor or his representative
an account of his guardianship at least once a year. If he (the guardian) fails to submit
the account within a month from the ‘date of request made by the Public Prosecutor, he
shall be dismissed on the demand of the Public Prosecutor.
Article 1245The
guardian shall give an account of his tenure to the person formerly
placed under his guardianship when the person concerned has reached full age and
maturity or removal of his incapacity. If the guardianship comes to an end before the
removal of incapacity, the account must be submitted to the subsequent guardian.
123
Article 1246 The
guardian can ask for fees for the fulfilment of his duties as guardian.
The amount of the fees in question will be fixed with relation to the nature of the work
undertaken by the guardian, the amount of occupation caused to the guardian by his
duties as such, and the place where the guardian resides as well as the amount of the
income of the ward.
Article 1247The
Public Prosecutor can entrust to reliable persons, to a committee, or to
an institution either totally or party the right of exercising supervision in the affairs
relating to the person placed under guardianship. The person, committee or institution
appointed for carrying out such a control shall be held responsible for any loss or
damages which may be caused to the person placed under guardianship in the case of
failure or dishonesty on the part of such person or body.
CHAPTER 4
ON THE CIRCUMSTANCES OF DISMISSAL
OF THE GUARDIAN
Article 1248A
guardian is dismissed in the following circumstances:
1 If
it be established that the guardian lacked honesty or loses this quality.
2 If
the guardian commits a felony or perpetrates one of the following misdemeanours
and is convicted by a final judgment Theft, breach of confidence, swindling,
embezzlement, rape or m moral acts, offences against children, bankruptcy by fraud or
culpable bankruptcy.
3 If
the guardian is convicted to imprisonment for a reason other than those mentioned
above and consequently cannot manage the financial affairs of the ward.
4If
the guardian is declared bankrupt.
5 If
the incompetence or inability of the guardian in the management of the affairs of
the ward is established.
6 In
respect of Articles 1239, 1243 and 1244 at the request of the Public Prosecutor.
Article 1249 If
the guardian be insane or immature, he will be dismissed.
Article 1250If
the guardian is prosecuted by the Public Prosecutor in the matters
relating to the property of the person placed under guardianship or in respect of a felony
or misdemeanour concerning his ward, another guardian will, at the request of the Public
Prosecutor, be appointed by the court for supervising temporarily the affairs of the ward.
Article 1251 If
a woman without a husband who is appointed as guardian, even if she
be
the mother of the person placed under guardianship, re marries,
she will have to report
the matter within a month from the date of the contract of marriage to the Public
Prosecutor of the district of her residence or to his representative In such a case the
Public
Prosecutor or his representative can, while taking into view the new position of that
woman, ask for the appointment of a new guardian or the addition of a supervisor.
124
Article 1252 With
regard to the preceding Article, in case the guardian fails to report
her marriage to the Public Prosecutor or his representative within the prescribed period,
the Public Prosecutor can ask for her dismissal.
CHAPTER 5
ON THE RELINQUISHMENT OF GUARDIANSHIP
Article 1253 On
the removal of the grounds which have caused the appointment of a
guardian the guardianship will be extinguished.
Article 1254 The
person placed under guardianship or any other interested person can
ask for the removal of the guardianship The application for this purpose can be
submitted
to the Special Civil Court of the district where the ward resides either direct or through
the Public Prosecutor of the said district or his representative.
Article 1255 In
respect of the preceding Article the Public Prosecutor or his
representative is bound to make enquires before hand as to the grounds for the removal
of
the ground and to express his views in court with regard to the result of his enquiries.
In respect of persons whose incapacity is announced in accordance with Article 1225,
the
removal of the incapacity should also be notified.
Article 1256 The
removal of incapacity of any ward should be recorded in the register
mentioned in Article 1226 against the name of the ward.
VOLUME III
ON EVIDENCE IN SUBSTANTIATION OF CLAIMS
On Evidence in Substantiation of Claims
Article 1257 Anyone
who claims a right has to establish the same and if the defendant,
wishing to defend himself, claims something which may require evidence, it is he who
must prove it.
Article 1258 The
evidence admissible in proving a claim is as follows:
1 Confession.
2Written
documents.
3 Oral
testimony (evidence).
4Indications.
5 Oaths.
125
BOOK 1
Regarding Confession
CHAPTER 1
ON THE CONDITIONS OF CONFESSION
Article 1259 Confession
in acknowledging the right of another person against one’s
own interest.
Article 1260 Confession
takes place in any expression which implies the same.
Article 1261 A
sign made by a dumb person, which clearly indicates a confession is
valid.
Article 1262 The
person making a confession must be mature, sane, capable of
forming
an intention, and free. Therefore, an avowal made by a minor, or an insane person in a
state of lunacy, or one who has no fixed intention or one who is under compulsion is of
no effect.
Article 1263 The
confession made by a person of unsound mind in financial matters is
of no effect.
Article 1264 A
confession made by a destitute person or a bankrupt in respect of his
property and against the interest of the creditors is not effective.
Article 1265 A
confession made by person claiming destitution and bankruptcy in
matters relating to his property is of no effect in regard to the safeguarding of the rights
of others unless the destitution or otherwise is proved.
Article 1266 Capacity
is not essential in respect of the person in whose favour the
confession is made. But he must be capable, according to law, of possessing what the
confession has conferred upon him.
Article 1267 A
confession made to the benefit of a deceased person will be effective for
the latter’s heirs.
Article 1268 A
conditional confession is not effective.
Article 1269 A
confession made in a matter which is practically or rationally
impossible, or which is not valid in law is not effective.
Article 1270 A
confession made in respect of an unborn child is only valid when the
child is born alive.
Article 1271 If
the person in whose favour the confession is made is unknown, the
confession is of no value. If he is partially specified, the confession is effective; as for
instance when one of two known persons is meant.
Article 1272 The
validity of the confession does not depend or the approval of the
person in whose favour the confession is made. If, however, he (the letter person)
denied
the substance of the confession, the said confession will have no effect in his favour.
Article 1273 A
confession made in respect of parentage is only valid whom (1) the fact
of such parentage is possible by law and custom and (2) the person with whom the
confessor alleges relationship admits the same, except in the cause of a minor who is
126
admitted by a person as being his child, provided that no other person disputes his
statement.
Article 1274Disagreement
between the person making a confession and the person in
whose favour the confession is made concerning the cause of the confession does not
make a confession invalid.
CHAPTER 2
ON THE EFFECTS OF CONFESSION
Article 1275 Any
person admitting the right of another person is bound by his
admission.
Article 1276 In
case the falseness of a confession is proved before the magistrate, the
confession shall have no value.
Article 1277 A
denial, if made after a confession, is not admissible. But in case a
person
making a confession claims that the confession made by him was faulty or based on
error
or mistake, his claim will be heard. The case is similar if that person mentions an excuse
for his confession which is admissible, such as a statement made by him to the effect
that
the confession made by him related to a sum received against a document or draft which
has not been cashed. These claims, however, do not affect the confession so long as
they
have not been established.
Article 1278 The
confession made by a person is valid only in respect of that person or
his legal representative and has no effect in respect of others unless the law has made
the
confession effective in respect of that person.
Article 1279 An
oral confession made outside a court can only be proved by giving
evidence by witnesses, when the claim itself is capable of being proved by evidence
given by witness, or when proofs or indications exist that the confession really took
place.
Article 1280 A
written confession follows the same rules as an oral one.
Article 1281 The
mention of a debt in a commercial account book
is equivalent to a
written confession.
Article 1282 If
the confession made in a court depends on a condition or a situation, the
person in whose favour the confession is made cannot partition the same by taking
advantage of the part which is to his interest and against the interest of the confessor,
while ignoring the remaining part of the confession.
Article 1283 If
the confession made contains two parts which are of different effect and
which are closely related to each other, as for instance where the defendant admits to
have received the amount claimed from the claimant but claims to have returned it, steps
will be taken in accordance with Article 1334.
127
BOOK 2
Regarding Documents
Article 1284 By
“document” is meant any writing which can be referred to in
connection with a claim or a defence.
Article 1285 Signed
testimony is not regarded as a document; it only has the value of
signed testimony.
Article 1286 Documents
are two kinds: notarial and private.
Article 1287 Documents
which have been drawn up at the General Department for
Registration of Documents and Landed Properties, or at the offices of Notaries Public, or
before other official authorities, within the limit of their competency and in accordance
with legal Regulations, are notarial.
Article 1288 The
contents of a document are authentic if it is not contrary to the laws.
Article 1289 With
the exception of such documents as are mentioned in Article 1287,
all documents are regarded as private.
Article 1290 Official
documents are binding in respect of the two parties and their and
successors. They are binding in respect of third persons if this has been stipulated by
the
law.
Article 1291 Private
documents shall in two cases have the value of notarial
documents,
and shall be binding in respect of the two parties and their heirs and successors
1 If
the party against whom a document is lodged admits that the document has been
issued by the person who is alleged to have issued it.
2If
it is proved in the court that the document has actually been signed or sealed by the
party who has denied it or expressed doubts as to its authenticity.
Article 1292 Denial
and expression of doubt is not entertainable against notarial
documents or documents which have the value of notarial documents, but the party can
claim that the documents have been forged or prove that they have for some reason lost
their validity.
Article 1293 If
a document has been prepared by an official authority charged with the
drawing up of documents, but that authority has not been competent to draw up the
document or has not observed the legal requirements connected with the drawing up of
the document, such a document, if it bears the signature or the seal of the party is
regarded as private.
Article 1294 Failure
to comply with the provisions regarding stamp fees which are due
on documents does not make a document lose its authenticity
Article 1295 Iranian
courts will give to documents drawn up in foreign countries the
same credit as the said documents possess in accordance with the laws of the country
in
which they have been drawn up, provided that:
Firstly, they have not lost their validity for any legal reason.
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Secondly, their contents are not in contravention with the laws connected with public
order or good morals in Iran.
Thirdly, the country in which the documents have been drawn up gives credit to
documents drawn up in Iran, in accordance with its laws or treaties.
Fourthly, the Iranian diplomatic or consular representative accredited to the country
where the document has been drawn up or the diplomatic or consular representative of
that country in Iran has certified that the document has been drawn up according to the
local laws.
Article 1296 In
case the conformity of the documents referred to in the preceding
Article with the laws of the locality where they have been drawn up has been attested by
the foreign diplomatic or consular representative in Iran, the admittance of the document
in the courts of Iran depends on the Ministry of Foreign Affairs in Tehran or the
Governor General
and Governors in the Provinces and towns having certified as true
the
signature of the foreign representative.
Article 1297 In
connection with a claim lodged by one merchant against another
merchant in circumstances where the claim has arisen out of commercial accounts and
dues, the commercial books will be considered as evidence, provided that the said
books
have been drawn up in conformity with the Commercial Code.
Article 1298 A
merchant’s book shall not be valid as against a non merchant;
but it
can be accepted as one of the indications and clues. But if a person refers to the book of
a
merchant, he cannot make a differentiation, accepting what is to his interest and
rejecting
what is to his disadvantage, unless he proves the invalidity rejecting what is to his
disadvantage, unless he proves the invalidity of what stands to his disadvantage.
Article 1299 Commercial
books are not considered as evidence in the following cases:
1 If
it is proved that new sheets have been entered into the books or that the book has
erasure (s).
2 When
an irregularity or disorder is discovered in the book, being in the interest of the
owner of the book.
3 If
the invalidity of the book has been formerly established in the court, for some
reason.
Article 1300 In
cases where a commercial book is not evidence in favour of its owner it
will be a valid document against him.
Article 1301 A
signature apposed on a script or document serves as evidence against
the
signatory.
Article 1302 If
at the foot or on the margin or the back of a document which is in the
hand of the producer (of the document) there are endorsement made showing the
invalidity or the invalidation of the whole or part of the substance of the document, the
said endorsements shall be considered as valid even if they have no date or signature,
or
have been cancelled by drawing a line through them or some other way.
Article 1303 The
contents mentioned in the preceding Article shall have no effect if
their cancellation is accepted by the other party, or if it is proved in court.
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Article 1304 If
a signature to an undertaking is not given in the written undertaking
itself but is given in a separate script, such written undertaking shall be an evidence
against the signatory, if the script specifies to which undertaking or transaction it relates.
Article 1305 In
notarial documents the date of drawing up (of the document) is valid,
even against third person, but in private documents the date is valid only in respect of
those persons who have had participation in their drawing up and their heirs and the
person in whose favour a will has been made.
BOOK3
Regarding Testimony
PART 1
ON THE CIRCUMSTANCES OF EVIDENCE
Article 1306 Repealed
on 29 December 1982.
Article 1307 Repealed
on 29 December 1982.
Article 1308 Repealed
on 29 December 1982.
Article 1309 Against
an official document or a document whose validity has been
established at the court, no claim which is in contradiction with the substance or contents
thereof can be proved by evidence.
Article 1310 Repealed
on 29 December 1982.
Article 1311 Repealed
on 29 December 1982.
Article 1312 The
rules laid down as above shall not be binding in the following cases:
1 In
cases where the testimony of a witness strengthens or completes the evidence, as
when some proof is available in support of the original claim, but the quantity or the
amount is unknown and the testimony is given to indicate the quantity or the amount.
2 In
cases where it is not possible to obtain a document owing to an accident, such as
fire, blood, earthquake or shipwreck, in which circumstances a person who has
entrusted
his property to another person cannot possibly obtain a document for it.
3 In
respect of all obligations for which documents are not usually obtained, as for
instance, the goods which persons entrust to hotel, cafes, inns, and theatres and such
as
the fees of doctors and midwives; also in respect of discharge or obligations for which it
is not usual to obtain a document, such as works undertaken under contract or the like,
even if the original undertaking is based on a document.
4 In
cases where the document has been lost or destroyed as the result of unexpected
events.
5 In
cases of automatic guarantees and other affairs not involved in contracts and
transactions.
Article 1313 – 1n a witness maturity, sanity, justice, faith and legitimate descent are
required.
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Note 1 The
witness’ justice must be established by a religious procedure for the Court.
Note 2 The
testimony of a person who has a personal interest, the res or prefit thereof,
in the subject matter
of the Claim or has the right to challenge the claim, as well as the
testimony of medicants shall not be accepted.
Article 1313 bis Repealed
on 29 December 1982.
Article 1314 The
evidence of children who have not reached the full age of 15 may be
heard only for supplementing information, except where the law has recognized
evidence
given by such children as valid.
PART 2
ON THE CONDITIONS OF GIVING EVIDENCE
Article 1315 Evidence
must be given from a sure and certain knowledge, not by way of
doubt or hesitation.
Article 1316 Evidence
give must correspond with the lawsuit, but it is not invalid if it is
contradictory in words but consonant in meaning, or proves less than (the amount of) the
claim.
Article 1317 Evidence
given by witnesses must agree in substance. Therefore, if
witnesses give evidence found to be at variance with each other such evidence shall not
have any effect unless sure conclusion can be drawn from the substance of their
declarations.
Article 1318 There
will be no objection to varying statements by witnesses in respect of
the details of a matter if they (such statements) do not involve contradiction on the
subject about which evidence is being given.
Article 1319 No
effect will be given to the evidence given by a witness if he withdraws
his evidence or he is found to have given incorrect evidence
Article 1320 Hearsay
evidence will be admissible if the first witness has died or is
unable to be called owing to other impediments such as sickness, travel, imprisonment,
etc.
BOOK 4
On Circumstantial Evidence
Article 1321 By
circumstantial evidence is meant conditions and circumstances which
are considered, by virtue of law, or in the view of judge, as proofs of a matter
Article 1322 Legal
circumstantial evidence are such indications which the law has
regarded as evidence in a matter, such as the indications mentioned in this Act, Articles
35, 109, 110, 1158 and 1159 etc. and other proofs stipulated in other laws.
Article 1323 Legal
circumstantial evidence shall be valid in respect of all claims, even if
they are such claims as cannot be proved by the evidence of witnesses, unless there is
proof defeating such circumstantial evidence.
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Article 1324 The
circumstantial evidence left to the view of the judge are the conditions
and circumstances regarding the issue (of a claim), and can be accepted only in cases
where the claim is provable by the evidence of witnesses, or where it (the circumstantial
evidence) completes other evidence.
BOOK S
Concerning Oaths
Article 1325 In
respect of claims which can be proven by the evidence of witnesses, the
claimant may subject the decision to be issued respecting his claim denied by the
defendant, to the latter’s taking an oath.
Article 1326 In
the cases covered by the preceding Article, the defendant can also, in
the event of asserting that the debt or obligation or the like has lapsed, make the
decision
to be issued respecting the claim subject to an oath being taken by the claimant.
Article 1327 The
claimant or the defendant in the cases covered by the two preceding
Article can request that an oath should be taken by the other party if the act or the issue
of
the claim is related to the other party in person. In respect of claims against minors and
insane persons, therefore, an oath cannot be required from the natural guardian,
guardian
or executor for the acts done by him personally as long as he remains in their charge as
natural guardian, or guardian or executor. This also applies to all cases where a matter
is
related to one party.
Article 1328 The
person whose lot it is to swear must, in the event of failing to prove
the nullity of the claim put forward by the other party, either take an oath or pass it on to
the other party . In case he will neither take an oath nor pass it on to the other party, he
will be condemned in regard to the claim for which an oath has been requested, on the
oath taken by the claimant as decided by the Court.
Article1328(a)added
as an amendment .on 29 December 1982. The court can on the
basis of The importance of the subject of litigation, the personality of the litigant, a other
effective circumstances offer that the oath should be taken with certain special religious
.ceremonies , or make the taking of the oath more solid in any other way.
Note If
a person who has been required to take oath with these religious formalities or
solidness , does not accept these extra formalities and nevertheless takes an oath
(without
these additional formalities), will not he considered as having de the oath.
Article 1329 An
oath is to be imposed upon a person whose confession would he
binding if he made a confession.
Article 1330 The
request for an oath may be delegated and the advocate in charge of
the
lawsuit can ask for the other party to swear an oath, but an oath to be sworn cannot be
delegated and an advocate cannot swear an oath instead of his client.
Article 1331 An
oath terminates a claim and no statement contradictory to the oath may
be accepted from the other party.
Article 1332 An
oath shall have an effect only in respect of those persons who are
parties to the suit and their successors.
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Article 1333 In
respect of a claim against a deceased person, if the original right has
been proven but the continuance of its existence is not established in the view of the
judge, the latter can ask the claimant to swear an oath as to the continuance of
existence
of the right. In such circumstances, the person who has been asked to take the oath
cannot
pass it on to the defendant. The provisions of this Article shall not apply in the case
where the evidence for a claim is a no trial document.
Article. 1334 In
the case of Article 1283 the person who has confessed can request
that
an oath be taken by the other party for anything that he (the former) claims, unless the
evidence in support of the claimant’s claim is a notarial document or a document whose
validity has been established in the court.
Article 1335 Taking
oath is permissible only in circumstances where none of the
evidences mentioned in Books One to Four of Three of this law exists to prove a claim .
Only in such a case the claimant can offer an oath to resolve his claim against a
defendant
who denies the substance of the claim.
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