محمدحسین خادمی آراسته

The rule of waste is one of the famous jurisprudential rules in all Muslim Sects and there is a consensus regarding it. One of the most important causes of forced guarantee that is cited is the same rule of loss. The application of the rule of waste indicates that whoever wastes another`s property is a guarantor , and the mistake in the loss is not stated in the appearance of the rule , and on the ofter hand , if the non-financial rights of people are lost , it con not be removed from the rule. Because the appearance of the rule emphasizes the of financial rights. However, one should not pay attention to appearance of the rule, because by using Article 1 of the Civil Liability Law, harming any right that a person has , whether it is property or otherwise , is guaranteed. One of the non-financial human rights is life and health , wiche is respected by the legislator along with other legal rights, including property. Therefore, despite the fact that Physical loss and damage to people is not a matter of financial rights, but according to Article 496 of the Islamic Penal Code, it is a guarantee and responsibility for the person responsible for the damage.

Undue performance is a legal evident that cused civil liability of receiver. in the civil law, some objects about undue performance have been emerged and its executive guarantee has been expressed in the case of performing undue performance circumstances. The reason of being legal evident of undue performance is that after performing undue performance receiver’s necessity and legal commitment of the restitution of property arising from legal judgement. In the realm of social security, undue performance resulted from following headings of compension, costs of treatment, pension payment, social security taxes and its appurtenances. Nevertheless, neither of social security articles has pointed to the undue performance, but from the meaning of articles 36, 37, 38,65 and 66 the above mentioned, undue performance can be inferred and considered as instances of undue performance. Undue performance may be the result of making mistake in judgement or matter by social security organization, employer, alienee or workshop interests. In social security article, mistake has not been mentioned. But inferred from 37th article above mentioned, it can be said that organization realization in determining social security taxes can be proved as a mistake.

Unauthorized transaction occurs when a person transacts others’ property without having the following criteria: guardianship, executorship, attorneyship, tutorship or obligation of the other or property which belongs to the right of other and this transaction will be unenforceable. The legal nature of unauthorized transaction is a legal act. But regarding the legal nature of permission or refusal of unauthorized transaction that is performed on behalf of the owner or the other, there is difference of opinion. By performing data analyses, the nature of permission or refusal is a legal evident. After performing unauthorized transaction, the owner has authority to permit or refuse transaction in order to determine its circumstance. In fact, the consent or refusal of the owner of a property to an unauthorized contract can be signified by an act which signifies his consent or indicates absence of consent to the contract. Such consent is only effective and valid if it has not been previously refused; otherwise, it is not effective. The owner may make a mistake in refusing or permitting transaction. This mistake is sometime effective and sometimes ineffective. In this article, while expressing the meaning and nature of permission and refusal, the legal effects of mistake on permission and refusal are investigated.