Vol-7, Special Issue-Number5, 2016, pp1479-1493 http://www.bipublication.com
Research Article
Study of the Nature of Fulfillment of a Promise in the Iranian Law
Meisam Shahnazari1 and Hossein Davoodi Beyragh2
1,2
Department of Law, Rasht branch, Islamic Azad University, Rasht, Iran
a
Corresponding Author: h.davoodi@ut.ac.ir
ABSTRACT
Some people believe that if fulfillment of a promise does not lead to the ownership or transfer of a right, it is merely a judicial act which its realization does not require the express will of the promisor, i.e. the promisor submits the right to the promise. As per this view, fulfillment of a promise is a unilateral contract which requires the express will of the promisor, but if fulfilling a promise does not lead to the ownership or transfer of a right or property, it is considered as a legal event which does not require the express will. The problem of this view is that this theory mostly includes an assumption in which the debtor is forced to fulfill his promise or the creditor seeks his debt by force. Accordingly, the assumption that the debtor has fulfilled his promise voluntarily and the creditor has shown his consent is problematic. Some jurists reacted to this problem that what seems to be logical in this assumption is that fulfillment of a promise is legal act, not a legal event. Some other theories in this research investigate theories regarding the nature of fulfillment of a promise which typically has a specific title. Based on this research, in cases where fulfillment of a promise is the transfer orownership of a property or right, it is called a unilateral contract which requires the express will of the promisor and otherwise, it is merely a simple judicial act (legal event) which does not require the express will.
Keywords:Fulfillment of a promise, proof of a commitment, termination of obligations, rulings and legal effects
INTRODUCTION
Fulfillment of a promise is a moral and legal obligation and humans must fulfill their obligations toward others voluntarily, but sometimes through law enforcement. In the Civil Code, fulfilling a promise is among the means of termination of obligations. This interpretation is not accurate, because although fulfillment of a promise leads to the termination of obligations, in the first step, it is the means of its fulfillment and its termination is a forcible phenomenon obtained as a result of the voluntary fulfillment of a commitment. Then, the executive face of fulfillment of a promise is stronger than its role in the termination of obligations. Furthermore, in the traditional language, the term termination is a state where a right or institution does not achieve its final goal and is destroyed in the middle of the way, while fulfillment of a promise is the objective of each system and what happens must not be called the
termination of obligations. In addition, fulfillment of a promise sometimes does not lead to its termination and payer is the deputy of creditor against the debtor. In Article 271 of the Commercial Code, we read that the third party who has paid the draft encompasses all the rights and obligations of the draft holder. Our Civil Code follows the French Civil Code, but newer laws such as Swiss liability law express regulations of believing a promise as the title of fulfilling commitments and a group of French authors followed a new codification. In any case, the debtor is not always willing to fulfill his promise and sometimes he must be forced. This force is asked from the court and the guarantee of legal fulfillment of a promise is obvious and effective at this step.
obligations and proving commitment, but also explains fulfilling a promise in details. The author of this series hopes to be safe from any possible error in the codification and compilation of contents. In this research, we attempt to answer two questions:
1. What is the nature of fulfilling a promise? Is it a legal act or a physical matter or a judicial act? 2. How must be the condition of fulfilling a promise considering this nature?
According to these questions, it is worth mentioning that the nature of fulfilling a promise based on the subject of commitment may be in terms of a contract, unilateral contract,physical matter or judicial act. In addition, given the nature of fulfilling a promise (contract, unilateral contract, judicial act, physical matter, etc.), different conditions are imposed on it and the competency of parties may be a condition in a case and may not be so in another. Fulfillment of a promise must match to the subject of commitment.
For this reason, in this section of research, first, we define the sources of commitment and fulfillment of a promise in the jurisprudence and law; then, the legal doctrine of fulfillment of a promise and its conditions and effects are studied. Finally, the research is concluded.
1) Definition of Commitment
"Commitment" literally means testament, oath, promise, treaty, protection, respect, security and liability (MortezaZobeidi, 1414 AH, Volume 76, 1). The equivalent of this term in jurists' expression is the term "obligation" (ShahidSani, 1407 AH, Volume 1, 256) and in Arabic countries, the term "obligation" is used instead of commitment (Alsanhouri, 1993, Volume 4, 266). In the Iranian Law, there is no definition for commitment and only its instances and effects are addressed. In the Civil Code, in Articles 699 and 723,the term obligation means commitment.
In the legal terms, jurists have provided two definitions for the commitment which include: A- Commitment is a legal (or personal)
relationship between two people by which one is obliged to another.
B- In the second definition, commitment is an Arabic term which is rooted in the promise and means requirement.
In conclusion, the two aforementioned
definitions define the commitment in jurists' terms as: commitment includes a legal relationship by which a certain person(s) is obliged to submit something or take an action or stop a certain action in favor of a certain person(s) according to the demands of the contract or quasi-contract or crime or tort and or by law.
1-1) Type of Commitment
The subject of commitment, i.e. what the debtor is obliged to the other, may be related to the ownership of a property and taking or preventing a certain action. In other words, the subject of commitment is always taking an action because the analytical ownership of a property is something that debtor is obliged; the only difference is that commitment is fulfilled once created (Katoozian, 47, 2000). In this section, different types of the object of commitment are studied.
1-1-1) Commitment to the Ownership or
Transfer of a Property
In our law, this type of commitment is proposed in two assumptions:
A. Ownership contracts in which the ownership of a property is done by compromise and does not require formalities, such as contract of sale, lease contract and conveyance.
B. Contracts based on which the person is required to transfer the ownership of a property to other by providing special instruments, like when the person is committed to sell his house to other as per a letter of promise (MoghadasArdabili, 1983, Volume 1, 162).
1-1-2) Commitment to Take an Action
accepted as effects of a correct sale in Article 362 of the Civil Code.
1-1-3) Commitment to Prevention
Sometimes, a person is committed to prevent a certain action as per the contract, like when a lessee is committed not to transfer the object of the lease contract to other as per the lease contract (Khorasani, 1406 AH, 121).
1-1-4) Sources of Commitment and Means for Establishing a Debt
The Civil Code has not explicitly determined the means of commitment but most authors have considered that the commitment (obligation) is rooted in the following five factors:
1-1-4-1) Contract: As per Article 183 of the Civil Code, "contract means that one or several persons are committed to take an action for one or several other persons and satisfy them". Contract was the most important source of commitment in the past because most debts were established by individuals through agreements, but the significance of contract was reduced gradually. Today, most commitments are imposed on individuals by the law.
1-1-4-2) Quasi-contract: It is an intentional and legitimate action which creates a commitment without individuals' agreement. For example, if
a person does not deserve something
intentionally or mistakenly, he shall return it to his owner (Article 301 of the Civil Code). In this case, receiver of a document is not necessarily dependent on the contract, but the committed intentional act makes the receiver the debtor against the owner. It is worth mentioning that this term has been criticized by some jurists (Katoozian, 2000, 2).
1-1-4-3) Crime: it means illegal actions taken intentionally to harm others.
1-1-4-4) Tort: it means illegal actions taken by mistake, negligence or recklessness. The legal separation of a crime or tort is fruitless because in both cases, the perpetrator is obliged to compensate damages. Therefore, by deleting these two terms, illegal actions must be the source of commitment (Haman: 5).
1-1-4-5) Law: A requirement which is not dependent on each of the four aforementioned cases is called the commitment resulting from law. In this case, it is observed that a
commitment is resulted from law for a person, although no contract and or action on the promisors’ side has interfered in it. Some authors (JafariLangroudi, 1984, Volume 1, 120) introduce some other cases as sources of commitments in addition to the abovementioned cases, including:
1-1-4-6) Contracts: Contracts such as possessory wills, abandonment, quittance(release from an obligation) and pre-emption. In this case, there are disagreements between jurists and some criticisms were proposed for the acceptance of unilateral commitment as a source of creating a commitment (Khomeini, 1409 AH, Volume 1, 230).
1-1-4-7) Tradition and Custom: Such as ShirBaha (bride price) which is committed by the payer and this commitment exists in the indisputable tradition. In this case, a question and answer by Jame-al-shatat were cited.
2) Fulfillment of a Commitment
In this section, the legal nature and definition of fulfillment of a commitment shall be addressed.
2-1) Definition of Fulfillment of a
Commitment
Fulfillment has come from the term "Vafi" which literally means acceptance, attendance of a promise and fulfillment of a promise. In terms of meaning, it is similar to the term "Ifa", i.e. "conduct". The Holy Quran used the latter term from Hijaz. The term "promise" has different meanings, including testament, treaty, oath, covenant and condition (IbnManzour, 1410 AH, Volume 1, 308). Literally, fulfilment means to conduct (a promise) (AzarTalesh, Contemporary Arabic Culture) and in other words, fulfillment of a promise literally means to pay debts and take responsibilities (Amir Houshang, Danay, Arabic Culture) and in fact, the purpose of all commitments is to be fulfilled which sometimes the commitment is cancelled. Some others define the term Ifa as the root of Vafi meaning to commit, fulfill a promise, fulfill, perform a treaty and completely observe rights of other people (Ansari, 231, 2005).
between two parties unlike promise which does not require two parties to be fulfilled. A general and specific relation exists between these two terms. It means that each contract is a promise, but each promise is not a contract. Therefore, fulfillment of a promise means paying debts and taking responsibilities.
2-2) The Legitimacy of Fulfillment of a Promise
Fulfillment of a promise is the most simple and natural way for a promisor to pay his debts, i.e. through fulfillment of a promise, contract parties complete the contract as expected.
All legal schools emphasize the fulfillment of a promise in contracts and transactions. The legal school of Islam has ordered this issue in various verses and hadiths. The major Quranic reason is
the first verse of MaedehSura
"دﻮﻘﻌﻟﺎﺑاﻮﻓوااﻮﻨﻣﺂﻨﯾﺬﻟاﺎﮭﯾاﺎﯾ" which orders believers to fulfill their promises and contracts. In the interpretation of this verse, some commentators say that contracts mean promises and treaties taken by people in the ignorance era called "Halaf". Some others say that contracts mean treaties God imposed on humans in taking lawful and unlawful acts (Zemokhshari, 1987, Volume 1, 60). Another group interprets them as contracts concluded between a human and himself or others, including marriage contract and contract of sale. Others said: this verse implies the order of God for believers to fulfill their promise in terms of the Torah, Bible and authentication of the Prophet Muhammad
(Tabarasi, 1995, Volume 3, 259) but
commentators and authors of Ayat-al-ahkam books do not limit contracts to each of the aforementioned cases and say: "contract" is general and includes all contracts, i.e. contract which is a promise is in accordance with all religious covenants such as monotheism and other Islamic principles and educations, ritual acts and provisions for establishment and signature, including contracts and transaction and fulfillment of all these tasks is obligatory (MoghadasiArdabili, 1983, 462). Therefore, the term contractin verse includes commitments or at least strict commitments, i.e. all commitments, even commitments of contract,
unilateral commitments (contracts) and
commitments toward God (vow (Nazr) and quasi-vow (Shebheh Nazr)). It is obvious that if fulfillment of a commitment is contrary to the Book of God and Traditions of the Prophet, it is not obligatory (Gorji, 1993, Volume 1, 42).
2-2) The Nature of Fulfillment of a Promise
The commitment taken by a person who is obliged to fulfill is sometimes resulted from a contract, such as a seller who is committed to return the object of transaction to the buyer after the completion of transaction or a lessee who has to return the object of lease contract to the lessor after the expiration of the lease duration. Sometimes the commitment results from non-contract, for example, if a person's car's brake does not work and leads to some damages, the owner of car is committed to repair and pay the penalties. In all cases, first, before determining the way of fulfilling a commitment and investigating components and provisions, it must be cleared that what the fact of fulfilling a commitment and promise in judicial and legal terms is. Clarification of the abovementioned titles in the Law and Jurisprudence can show the reasons of disagreements of experts and pave the way for the better analysis of judicial rulings. For example, letter of conveyance is a branch of other contracts in Sheikh Toosi's opinion, but today, most and even all Shiite scholars call it an independent contract. It is obvious that the opinion of Sheikh Toosi is not accepted when it is related to the reality and nature of the letter of conveyance (Bagheri, 2007: 66). Regarding the fulfillment of a promise, it must be clear that what its nature is and whether it is a contract and limited to the observance of general principles of contracts or is a unilateral legal act (contract) and does not require the acceptance of the other party or is a nature other than contract and unilateral contract.
event. Great jurists such as "Katala" and "Karboyne" have supported this theory (Hayati, 2013, 407). In the Iranian Law, most jurists have supported the latter theory. The promise of this class of jurists is defendable because the level of paying debt is not relevant by itself, but the purpose is the object of commitment which is submitted to the promise. In practice, if a seller becomes insane after the completion of contract of sale and submits the object of transaction to a buyer, there is no rational justification for its refund. For this reason, if a creditor obtains his debts or a third party obtains it without the permission and knowledge of the debtor, the fulfillment of a promise and termination of obligations are done, respectively. In addition, in the obligatory setoff which can be analyzed in two "payments", the satisfaction of debtor does not have any role (Katouzian, 2008, Volume 4, 16).
Of course, the last section of Article 269 of the Civil Code which makes competency necessary for paying debts indicates that paying a debt is a type of legal act. Otherwise, there was no need to determine the competency of the committer. Based on this article, "a promise is fulfilled when the promisor is the owner or agent of the owner to submit something and is personally competent". But, this inference does not seem to be correct because the necessity of competency for "possession of properties and financial rights" is a general principle which is mentioned in Article 1207 of the Civil Code. Interdicted people (under guardianship) are deprived of possessing properties and financial rights. Possession includes legal and financial possession and paying debts is a kind of financial possession because "the possession of properties of minors, insane people and children is borne by their parents or guardians…" (Article 1217); therefore, if a person is interdicted at the level of fulfilling a contract, a commitment which is an instrument for managing his properties must be established by his parents or guardian. Therefore, the necessity of competency which is mentioned in Article 269 for paying debts is a ruling based on principle and consistent with the principle stipulated in Article 1207 (Hayati, 2013, 408).
The competency necessary for the financial possession of properties is not only necessary for the promisor, but also thepromise must be competent to terminate obligations. As per Article 274 of the Civil Code, "if the promisee does not have competency, his payment is not valid". Therefore, the necessity of competency for parties to the commitment is a sign of the contractual nature of fulfilling a promise. This ruling has been codified for supporting interdicted people and preventing from the violation of their rights. The guarantee of non-competency for financial possessions is not invalidation or ineffectiveness because invalidation and ineffectiveness are specific for legal acts. Financial possession of properties of an interdicted person has special provisions based on the quality of possession. For example, if an interdicted person works for another person, he is entitled to receive wages, despite his non-competency(Article 336 of the Civil Code). However, if an interdicted person submits a property to the promise in order to fulfill his commitment, the commitment is considered to be fulfilled because as mentioned, a factor leading to the fulfillment of a promise is not relevant here. For this reason, paying debt is allowable by anon-debtor, even if he is not allowed by the debtor …" (Article 267 of the Civil Code). Such a fulfillment does not include unauthorized transactions.
Article 269 of the Civil Code has been adapted from Article 1283 of the Civil Code. This article states: "for a valid fulfillment, it is necessary that [the promisor] shall be the financial owner who offers the property and has competency for its transfer" (Haman: 409).
transaction (Article 190 of the Civil Code) make the competency necessary in this case. The
legitimacy of such fulfillment is
incontrovertible. The issue in dispute is a condition in which the promisor must submit a property to the promise. Even if the subject of commitment is to stop an action, taking a legal act is impossible because a legal act must be taken in a specified moment, while a person who promised to stop an action is fulfilling his commitment by not taking the action (Haman, p 409).
However, jurists and legal experts commented on this issue resulting in five theories which are addressed as follows:
2-2-1) The Contractual Nature of Fulfillment of a Promise
Regarding the nature of fulfillment of a promise, some jurists have considered it as a contract. This theory proposed among the jurists in countries such as France and Egypt that fulfillment of a promise is a mixed event comprised of a financial act (submitting some money or performing constructions or stopping an action) and agreement on paying a debt which is a legal and judicial possession by itself, and since in this mixed event, the element of legal possession is dominant, it must be considered among legal possessions. Such a possession can be called "objective legal possession" because it is a possession which is completely dependent on the fulfillment of a commitment, i.e. financial act (Shahidi, 2001, 22). In the justification of this theory, the following argument is proposed:
In the fulfillment of a promise, an agreement between the creditor and debtor is mostly in the light of a financial act, i.e. receiving the object of commitment from the debtor by the creditor. When the promisor submits the object of commitment to the promise and he accepts it, a kind of agreement and contract is formed in which the performer and receiver are called promisor and promise, respectively. The contractual nature of fulfillment of a promise is more obvious when a conflict regarding its authenticity is formed between parties. In this assumption, the creditor can refuse to receive the object of commitment. The right to refuse
shows that the fulfillment of a promise requires the acceptance of creditor. The intention of debtor expressed in terms of offering the object of commitment to the promise is the requirement of fulfillment of a promise (Haman, p 23).
2-2-2) Sale Nature of Fulfillment of a Promise
Some authors have considered the nature of fulfillment of a promise as a sale and accordingly, proposed some arguments. In fact, this theory has been attributed to Sheikh Toosi by SahebJavaher. In the jurisprudence, when talking about possessions, the opinion of jurists regarding the nature of fulfillment of a promise can be extracted:
If two people are indebted to each other so that the debt of one of them is gold and the other is Dirham and Dinar and are agreed regarding the termination of two debts, such a transaction does not require a payment because the liability has been fulfilled. The reason is a narrative quoted by Obeid IbnZorareh adapted from Imam Ali (HorAmeli, 1403 AH, Volume 12, 464).
2-2-3) Fulfillment of a Promise as an Obligatory Act
2-2-4) Fulfillment of a Promise as an Irrevocable Unilateral Contract
This theory limits the realization of fulfillment of a commitment to the express will of the promisor without being required to impose the will of the other party; therefore, fulfillment of a promise is a unilateral legal act, i.e. paying debt is done with the intention of promisor to pay the debt and acceptance of promise is not the condition of promise's fulfillment because paying a debt does not violate rights of others and no seizure of others' property is occurred. But, unilateral contract is an act resulting from intention and in the case of paying the debt, the debtor pays the debt with the intention of fulfilling his liability. For this reason, in jurists' opinion, the intention of paying a debt is obligatory for the debtor and the debtor must separate his debts from other properties at the time of death and if the creditor is absent, the debtor must make a testament (IbnEdris, 1410 AH, Volume 2, 33). In fact, a unilateral legal act in which there is no additional expect for other's express will is called a unilateral contract. MostImamiyahscholars have considered paying a debt and fulfilling a commitment between the commitment resulting from a contract and the commitment resulting from a non-contract in terms of a unilateral contract. Since a unilateral contract like a contract has been divided into a permissible unilateral contract, the nature of fulfilling a promise is a permissible unilateral contract. Some Iranian jurists following Imamiyah scholars say that fulfillment of a promise which is one of the instances of fulfillment of a contractual commitment is in fact an irrevocable unilateral contract. One of the professors of the Iranian civil law believes that if fulfillment of a promise leads to the revocation of an ownership or transfer to the promise, it will be a unilateral legal act which requires a confirmatory acquired will (Shahidi, 136, 2007). Therefore, in instances of performing a contract which leads to the transfer of a property or right to others, this transfer of property or right is a legal act. Therefore, the transaction’s will is required and according to the deceased Imami, since a new transaction is
formed, the liability requires an acquired will (Imami, 142, 1985).
Of course, opinions of the deceased Dr. Imami and Dr. Shahidi about fulfilling a promise are different from those of jurists because in the opinions of jurists, the nature of fulfillment of a commitment is absolutely an irrevocable unilateral contract whether it is resulted from a contract or non-contract, general or specific and leads to the transfer of ownership or not, but in Dr. Shahidi's opinion, the nature of fulfillment of a promise is a unilateral legal act if it leads to the transfer of right or ownership, otherwise, it is a legal event. The deceased Dr. Imami made a differentiation between the general and specific object of commitment and in his opinion, the nature of fulfillment of a promise is a new transaction if its object is general and did not comment about the specificity of the object of promise and this silence means that the nature of fulfillment of a promise is a legal event or a unilateral contract(Bagheri, 69; 1998).
2-2-5) Detailed Explainers
Among views regarding the nature of fulfillment of a promise, a group of authors did not absolutely accept the proposed views and decided to explain them in details. They believe that fulfillment of a commitment is possible through different ways:
It is sometimes done by force and sometimes voluntarily and in some cases, another person other than the promisor pays it voluntarily. In some cases, the object of commitment turns into a new commitment with the agreement of both parties. The object of commitment may be ownership or transfer of right or submission of property. Accordingly, fulfillment of a promise has various examples.
This variation and diversity helped some jurists to identify the nature of fulfillment of a promise like its examples. In jurisprudence, there are other titles which have different natures given different examples, including testament which its content of ownership is called contract by some authors and its content of commitment is called unilateral contract by some others
(JafariLangroudi, 1995, 14). Quittance
exchange for a compensation to him that may be equal to, more, or less than her marriage portion are of this type. However, in the explanation of examples of fulfilling a promise, three views have been proposed which are as follows: A. Detailed explanation of time when the object of commitment is committed or partial: Based on this theoryof submission of the object of commitment, if a generality is committed, it is considered as a new transaction in terms of intellectual analysis and is concrete like transfer because the committed generality has numerous parties outside which the promisor is committed to submit one of them and can select each of the general parties for fulfilling a commitment and selection of a party alone does not lead to the fulfillment of a promise, but must submit it to the promise. In such cases, submission means the ownership of a certain person over the promise which its generality is the object of commitment and the ownership is not possible without the intention of express will. However, its acceptance requires the express will which is notified through the receipt of the object of commitment from the promise, unlike the specified concrete (Imami, 1985, Volume 1, 318).
B. A detailed explanation that determines whether fulfillment of a commitment leads to the ownership or transfer of a right to the promise and or others: In the former, fulfillment of a promise is a unilateral legal act which requires the express will of the confirmer and in the latter, merely a legal act has been taken which does not require an express will. Accordingly, whenever the promisor submits a property committed by general parties to the promise without having the intention of fulfilling a promise, such a fulfillment does not take place; however, the committed debt may be terminated under the title of setoff; therefore, if before the time of paying a debt, the debtor submits one of his general debt parties to the creditor, he can retake the party from the creditor after the termination of the due date, unless it is demonstrated that the promisor had the intention of fulfilling a promise at the time of submission and if the promise’s fulfillment does not lead to the ownership or transfer of a
right, it is merely a legal act which its realization does not require the express will of the promisor. For example, when the object of commitment is submitted to the promise, the commitment is terminated due to the submission of the property to the owner, even if the promisor does not have the intention of fulfilling a promise, unless the promisee has right in the mentioned property; in this case, the submission of a property to the owner is fulfillment of a promise if it is accompanied by the express will. Therefore, whenever a lessee submits the object of lease agreement to the owner before the expiration of the duration of lease agreement without the intention of violating any right, fulfillment of a promise does not take place and he can retake the mentioned property from the owner to demand his right, but the will of promise does not have an effect, unless the object of payment is different from the object of commitment. In this case, the agreement of parties for converting the commitment and terminating and forming another contract is necessary. So, when the promisor submits the object of commitment to the promise, the obligation is terminated; however, the promise does not have the intention of receiving his debt or accepting the fulfillment of promise (Shahidi, 2007, 4).
C: Detailed explanation of a case where a right must be transferred and the object of commitment is taking or stopping an action or transferring a right: Based on the theory proposed by Swiss jurists, the nature of fulfillment of a commitment is a legal act and a legal event in the former and the latter, respectively (Katoozian, 1998, Volume 4, 8).
2-2-6) The Contractual Nature of Fulfillment of a Promise
influenced by the effects of the breach ofa contract, this definition has more or less entered the exclusive culture of America.
By the way, in the Iranian law, fulfillment of a contractual promise is defined as the fulfillment of commitments resulting from a contract and accordingly, it is the counterpoint of breach of contract, infertility in the performance of a contract through unpredictable factors and cancellation of a contract and the commitment resulting from a contract is the counterpoint of a commitment resulting from crime and tort as well as the civil liability and commitments resulting from law. The contractual commitment does not include the commitment resulting from a unilateral contract, unilateral exigency and unenforceable commitments. But, it includes
commitments resulting from nominated
(permissible, binding) contracts and contact as
well as independent, binding, simple,
guaranteed, changing and exchangeable
commitments (Sahranavard, 69, 1997).
2-2-6-2) The Nature of Execution of a Contract
Legal act is the counterpoint of the legal event. A legal act means a legal concept which requires the will of one or several person(s) to be realized. Some Iranian and French jurists consider the fulfillment of contractual commitments and payment of debts as a legal act. For example, regarding the submission of the object of commitment, deceased Dr. Seyed Hassan Imami believes that fulfillment of a contractual commitment is a new transaction: Submission of the object of commitment is intellectually a new transaction if it is a general liability and is like the transfer of a concrete object because the committed generality has many parties outside which the promisor is committed to submit one of them. The aforementioned act which is judicial seems to be a new transaction because the submission is the ownership of a certain party by the promise which its generality is committed and an inevitable ownership without an express intention is not possible. However, deceased Imami did not reject the legal nature of a new transaction and other jurists usually followed this view in the discussion of the general
submission of liability but this question has not been answered yet: If the object of commitment is a general liability, does the nature of execution of contract depend on the will of the executor of commitment or require the express will of the receiver?
Based on this theory, fulfillment of a promise has a contractual nature and requires the express will of both parties (promisor and promise). In fact, fulfillment of a promise is a kind of contract and agreement and like other contracts and agreements, the express will of both parties is required for its realization (Zahranavard, 70, 1997). This theory was proposed by some French, German and Egyptian jurists. Based on a famous theory in France, fulfilling a promise is an agreement or contract which its subject
includes terminating a commitment and
releasing a debt by the debtor. Based on this theory, collection of claims is not enough for the termination of debtor’s debts and his acceptance is a necessary issue. For this reason, he must have competency of ownership.
of a promise is a contract and agreement between the promisor and promise, it is a legal act in which provisions of other legal acts are included. Since fulfillment of a promise is a legal act, it inevitably must be based on a mutual consent and the exigency and acceptance of what is submitted by the promisor must be done by the promise. In addition, the lack of will is one of its defects. Some Iranian authors mentioned the contractual nature of fulfillment of a promise which is worth mentioning. In deceased Dr. Imami’s point of view, if the object of commitment is a general liability, its submission is a new transaction. He stated: submission of an object of transaction when it is a general liability is a new transaction based on the intellectual analysis like the transfer of a concrete object. Because the generality under commitment has many parties outside the promisor is obliged to submit one of them and can select each of them for fulfilling his commitment, and the selection of a party alone does not lead to the fulfillment of a promise, it must be submitted to the promise. This act which is a legal act on the one hand seems to be a new transaction because the object of ownership is for the promise and its generality is under commitment. The ownership is done with an express intention which is declared through submission from promisor to the promise (Bagheri, 69, 1998). Some other authors believe in the fulfillment of a promise through payment of non-object of commitment which is a new transaction, i.e. if the object of payment is different from the object of commitment, agreement between parties is necessary for the novation and consequently its termination or formation of another contract. Demonstration of the fact that execution of contract is a legal event requires two contents following many detailed views of authors who believe the legal nature of execution of contract:
1. Denying the nature of execution of contract as a legal act, albeit in some instances.
2. Proving the nature of execution of contract as a legal event in all instances.
2-2-6-3) Single or Multiple Nature of Execution of Contract
Execution of a contract is done through different methods including the voluntary fulfillment of a
contractual commitment, the compulsory
fulfillment of a contractual commitment referred to legal authorities, non-conforming execution of contract, exchanged execution of contract, execution of contract by a third party, execution of contract for a third party, etc.
It seems that the nature of legal concepts is not multiplied by duplicating its samples and is the legal nature of a legal concept which bears the same validity in all samples and if it does not lead to the multiplication of the concept’s samples, the reason is a difference in the complications out of its nature (Shayegan, 100, 1998).
In order to analytically conclude that the nature of execution of a contract is a single legal nature, we must pay attention to two points: First, we have to accept that the comprehensive simple nature of execution of contract cannot bear the views regarding detailed explanation among samples of execution of contract and the theory of the nature of execution of contract as a legal act and legal event. In other words, criticizing detailed and combined views of legal event and legal act is the second dimension of our subject.
Consequently, it seems that typically fulfillment of a promise is a voluntary act which is done optionally. Consent of creditor sometimes plays a role in it. For example, if the subject of commitment is general, the seller must select examples of debt and the buyer accepts it if the selected examples are based on the sample and conditions in the contract.
Based on this analysis, a group of authors considers fulfillment of a promise as an agreement or contract which its subject is to terminate a commitment and payment of debtor. In approving their words, this group cited the necessity of significance of the debtor’s possession and considered it as a sign for the acceptance of fulfillment of a promise (Haman, 87).
a property or take an action and in doing so, the receiver does not have any right in the selection or description of property:
By law, provisions of a contract must be respected and if the promisor does not fulfill his promise, he shall be forced.
As mentioned, termination of obligations is the physical and coercive result of fulfilling a promise and is not related to the express intention and the effect of will. For this reason, if the creditor receives the object of commitment or a third person accepts it without the permission of debtor or takes the debt from debtor reluctantly, fulfillment of a promise and termination of obligations will take place. If the debtor fulfills his promise, the debt will be terminated by itself and debtor’s will not only does not influence the occurrence of such phenomenon, but also cannot prevent it. It is important that what is submitted or done by debtor shall be compatible with the subject of debt and provisions of contract. Satisfaction of creditor is obtained through this compatibility, but it is not one of the elements of execution of contract and termination of obligations (AbdehBroojerdi, 111, 2000).
For this reason, in Article 273 of the Civil Law it is written that if the owner of right refuses to receive it, the promisor shall submit it to the governor or his deputy and terminate obligations and from the date of submission, he is not responsible for any damage to the object of commitment. If the object of commitment is to stop taking an action, the unfamiliarity of creditor in fulfillment of a promise is more obvious. The necessity of possession of a property does not show the contractual nature of fulfillment of a promise, but is supportive in order to prevent violating rights of an interdicted person which is interpreted in Article 274 of the Civil Law (Haman, 112).
Accordingly, fulfillment of a promise is similar to a legal event rather than a contract and has only two fundamental components:
A commitment which must be fulfilled and its fulfillment shall be based on the provisions of contract and the commitment must be based on the will of debtor and agreement of creditor or without their knowledge. But, since fulfillment
of a commitment depends on its provisions and nature, sometimes this fulfillment requires a legal or contractual act which must be taken by one of these two or both of them, such as a commitment to sell a property which is done through a contract of sale between both parties (Katoozian, 47, 2007).
2-2-7) The Role of Will in Fulfilling a Contractual Commitment
Fulfillment of a commitment resulting from a contract has two parties, the submitter and receiver or beneficiary of the object of commitment. In the legal interpretation of Arabic countries, these two are called “Movafa” and “MovafaLah”, respectively. In Iranian law, since parties to the commitment havethe same attributes in contractual and non-contractual commitments, the terms “payer and receiver” are permitted. However, the relationship between payment and execution is general and specific. If a jurist believes that the will of both parties is required for the correct fulfillment of contractual commitments and the will of performer is not enough, the nature of fulfillment of a commitment is considered as a legal act and a bilateral transaction which requires the express will of both parties. Legal transactions and acts which at least require the will of two parties are divided into two groups
of nominated contract and contract
(Sahranavard, 71, 1977).
The Theory of the Nominated Contract as the Legal Nature of Execution of Contract
are some differences between the nominated contract and contract.
Through review of Islamic jurists’ and scholars’ opinions, it can be inferred that individuals who analyzed the nature of fulfilling contractual commitment or its specific examples in terms of nominated contracts observed similar effects
between some nominated contracts and
contractual commitments in some examples and attempted to conclude the unity of a legal act through this similarity (Haman: 107).
Total opinions in this regard include:
A) Contract of Sale: Contract of sale in the Islamic jurisprudence is the transaction goods or properties and in Article 338 of the Civil Code, it is the ownership of a specified object. It is obvious that sometimes the transfer of ownership is considered as an exchange and sometimes as the commitment for the transfer of ownership in the law of other countries. However, we must know whether the nature of fulfillment of a contractual commitment and or an exchange as one of the examples of contract can be considered as a sale or not. Some Imamiyah jurists considered fulfilling a commitment as a sale (Isfahani, 137, 1418 AH). Regarding the nature of fulfillment of a contractual commitment, where the promisor must commit another thing other than the object of commitment and regarding the general commitment of liability, some Iranian jurists made it possible to analyze the fulfillment of a contractual commitment as a sale and or exchange due to the ownership of an object. However, normally, in fulfilling a commitment through payment of non-object of commitment or taking another action other than the object of commitment, parties do not have such an intention (JafariLangroudi, 99, 1984).
Therefore, it can be said that among Iranian jurists and Imamiyah scholars, the theory of sale nature of fulfilling a contractual commitment has some proponents in some examples or at least was proposed in Imamiyah jurisprudence. In Naeini’s opinion, contract of exchange is a nominated contract. Some other jurists such as MohagheghGhomi did not consider a separate nature for the contract of exchange and based on examples, sometimes analyzed it as a mute
(contract of) sale and sometimes as a sale or lease and factors changing this nature were considered as the requirement and intention of parties to the contract. The concept of exchange in Iranian Law is different from the concept of sale. This difference must be searched in the intention of parties to the contract, not in the goods or money as the object of exchange in a transaction (Haji Azizi,, 40, 2011).
In Iranian Law, exchange is similar to sale in terms of complementary nature, exchange and requirement of contract. Maybe this similarity in effects has led to disagreements among jurists in the analysis of the nature of contract of exchange. However, it is obvious that:
First, analysis of the execution of contract has been considered by foreign jurists.
Second, some Iranian jurists have accepted the possibility of exchange nature of fulfillment of a contractual commitment if parties intended to exchange.
Third, this analysis has been proposed in fulfilling a non-object of commitment, not in terms of fulfilling a promise. Therefore, it can be said that in some examples of execution of contract, it is analyzed by Iranian, Arabic and Italian jurists as a contract of exchange and such a thought is rooted in the similarity between the effects of the exchange in the object of commitment and those of contract of sale. B) Other Contracts:
In opinions of Germany, Italian and French jurists and Islamic scholars, the nature of executing a contract has been analyzed as nominated contracts, including settlement against consideration, donation against consideration and novation in some examples of execution of contract (Azad, 62, 2003).
2-2-7-2) The Theory of the Contract as the Legal Nature of Execution of Contract
Code. Therefore, in terms of execution of contract, at least one Iranian jurist believes in the nameless nature of execution of contract. What has been studied so far was the opinions of jurists who believed the necessity of more than one acquired will for the realization of execution of a contract, but in some scholars’ opinion, despite the necessity of acquired will for the realization of the nature of execution of contract, more than one acquired will is not necessary. Regarding the acquired will of the promisor, it must be said that if for the realization of a legal act, only the acquired will of one party is necessary, only two states are possible, waiting or not waiting for the incorporation of another party’s will (MousaviBojnourdi, 82, 1995).
CONCLUSION
If fulfillment of a commitment leads to the ownership or transfer of a right, it is merely a legal act (legal event) which its realization does not require the express will of the promisor, like when the specified object has been submitted to the promisee. Based on this view, fulfillment of a promise is unilateral contract.
The theory of unilateral contractual nature of fulfillment of a promise: As per this theory, fulfillment of a promise is a unilateral legal act (unilateral contract) which the express will of promisor is required for its realization without requiring the express will of other party (promise), i.e. paying a debt and fulfilling a promise are done through the intention of promisor to pay the debt and fulfill his obligations and the acceptance of promise is not a term in the fulfillment of a promise. This theory has some proponents among jurists and scholars. Most Imamiyah scholars considered the nature of paying a debt and fulfilling a promise as a unilateral contract without explaining the commitment resulting from contract and commitment resulting from non-contract. However, the unilateral contract has been divided into irrevocable unilateral contract and revocable unilateral contract. Some Iranian authors considered fulfillment of a promise as an irrevocable unilateral contract following Imamiyah scholars. It seems that fulfillment is mostly a unilateral contract but it is also used as
Third Topic: The Theory of Legal Event as the Nature of Fulfilling a Promise: Based on this theory which has proponents among all jurists and scholars, fulfillment of a promise is neither contract, nor unilateral contract, but it is an action which must be taken by the promisor, i.e. the commitment is fulfilled by law and if the debtor does not fulfill it willingly, he shall be forced. Therefore, the express will of promisor and promise is not required. Among jurists, “Al KashefAlghata” emphasized that: <Fulfilling a promise in terms of a unilateral contract does not have any logic [it is useless] because fulfillment of a promise is neither a contract, nor a unilateral contract, but an obligatory act and a right which must be fulfilled.> Among jurists, Dr. Katoozian believes that fulfillment of a promise is a legal event and considers it as a legal event. As per his view, fulfillment of a promise has two fundamental components: 1- a commitment which must be fulfilled and 2- its fulfillment based on the provisions of contract and commitment with the will of debtor and agreement with creditor or without their knowledge. But, since fulfillment of a commitment depends on its provisions and nature, this fulfillment sometimes requires a legal or contractual act which must be taken by one or both parties, such as commitment to sell a property based on the contract of sale between both parties. Therefore, fulfillment of a promise is a phenomenon which in case of its occurrence, it has a legal effect. Normally, in an optional fulfillment of promise, a kind of preliminary agreement on the method of fulfillment of the commitment is achieved between both parties, but this agreement must not be considered as the requirement of fulfilling a promise and its components. Thus, if a debt is received reluctantly, it has a traditional effect in fulfilling a commitment and its termination. The competency of payer is not the condition of accuracy of fulfillment of a promise, except cases where submission of a property (Article 269 of the Civil Code) requires its selection and possession. Therefore, fulfillment of a promise is an act which must be taken by the promisor by law and the will does not have any role in the fulfillment or termination of requirement.
Termination of obligations is also the result of the physical phenomenon of fulfilling a commitment and does not have any relationship with the express intention and effect of will. For this reason, if the debtor obtains the object of debt by himself or a third party pays it without the permission and knowledge of the debtor, fulfillment of the promise and termination of obligations are done.
REFERENCES
1. Al KashefAlghata, M. H. (1982), Tahrir-al-majale Al-ahkam, Qom, FiroozAbadi School. 2. IbnEdris, A. J. M. (1410 AH), saraer
Al-haviLetahrir Al-fatavi, Qom, Islamic Press Institute.
3. IbnManzour, A. (1410 AH), Lesan Al-Arab, Islamic Press Institute, Qom.
4. Imami, S. H. (1985), Civil Law, Tehran, University of Tehran Publications.
5. Ansari, Sh. M. (2006), Al-Makaseb Book, Qom, Religious Press Publications.
6. Bagheri, A. (2001), Setoff, Literature and Languages, Autumn 2001, No. 34, p 157-190.
7. JafariLangroudi, M. J. (1984), Course of Civil Law: Commitments Law. Tehran: University of Tehran Publications and Press Institute.
8. JafariLangroudi, M. J. (1995),
Testament-inheritance, University of Tehran
Publications.
9. Haji Azizi, B. (2011), The position of
novation in Imamiyah jurisprudence,
Quarterly journal of jurisprudence and principes of law, Summer, Vol. 44, No. 1, p 35-54.
10.HorAmeli, Sh. M. I. H. (1403 AH), Vasayel Al-shiiteEla tehsil Masayel Al-Shariate, Tehran, Al-Islamic School.
11.Hayati, A. (2013), General rules of contracts, Mizan Publication, Tehran.
12.Khorasani, M. K. I. H. (1406 AH), Margent of Almakateb Book, Tehran: Ministry of Islamic Guidance.
13.Khomeini, R., (1409 AH), Alrasael Dar AL-Kotob Al-Eslamiyeh, Qom.
14.Zemokhshari, M. O. (1987), Al-kashaf An
Al-aghavil Fi Vojooh tavil, Beirut, Dar AL-ketab Al-Arabic.
15.Sahnouri, A. A. (1946),
Al-mojezFelNazariyeh
Al-amehLel-eltezamatFelGhanon Al-madani; Egypt,
Cairo.
16.Shayegan, A. (1996), Civil Law. Qazvin: T Publications.
17.ShahidSani, Z. A. (1407 AH),Masalek Al-efham Fi SharheSharae AL-Islam. Tehran:. 18.Shahidi, M. (2007), Termination of
obligations, Tehran, Majd Publications. 19.Sahranavard, R. (1997), Novation and its
examples in Iranian Civil law, MA thesis, Tehran, TarbiatModares University.
20.Tabarasi, A. F. H. (1995), Majma AL-bayan Fi Tafsir Al-Quran, Beirut, Press Scientific Institute.
21.AbdehBoroujerdi, M. (2000), Civil Law, Qazvin: T Publications.
22.Katoozian, N. (2000), Civil Law: General theory of commitments, Tehran: Yalda Publications.
23.Gorji, A. (2005), Papers on law of Tehran, University of Tehran Publications, August. 24.MoghadasArdebili, A. M. (1983), Majma
Al-faedehva Al-borhan Fi SharheErshad AL-Ahzan, Qom: Islamic Press Institute.
