جستجوی مقالات مرتبط با کلیدواژه "attributability ‎" در نشریات گروه "فقه و حقوق"

The law of contracts is an important part of any legal system. A major challenge in this regard is how sanctions are determined in the event of the breach of a contract. Consistent with a set of pre-determined goals, all legal systems have made certain rules for the breach of contractual obligations. In the law of the United States, a strict liability system governs in terms of preservation of a contract as well as compensations for the damages of a contract breach. Nevertheless, drawing on the different aspects of the consequences of this liability, researchers have developed new perspectives on the fault-based enforcement of liability in recent decades. The Iranian Law, rooted in the Islamic jurisprudence (the Fiqh), limits the claim for contractual damages circumstantially to the affirmation of parties, customary law, or civil laws due to the differing opinions of Islamic jurists (the Foqahā) on the issue. Following the aims of the laws of civil liability in fully compensating for the damages incurred to contract parties, the loss can be estimated according to its attributability to the offending obligator. Use was made of the descriptive, analytical, and comparative methods in carrying out the present study.

Despite the predominance of the principle of personal responsibility, social necessities and demands of today’s societies have caused the legal systems in some cases to protect the rights of injured ones and those who commit damage while being unable to compensate for it, by considering other persons under whose protection and supervision the perpetrator has been liable. The clear example of this liability known as vicarious liability in Common law, is the employer’s civil liability for the actions of his employees, and the determination of genuine foundation of liability is an essential challenge in scope of civil liability and will be considered in this article. The different legislation of Article 12 of the Civil Liability Code has created several interpretations about the foundation of civil liability in Iranian law such as theories of assumed fault, the guarantee of right and the risk. Therefore, this article intends to identify initially the employer’s strict liability as a basis of governing to Common law referring to the policies such as attributability, economic analysis of civil liability, and loss-spreading  and then, to introduce the strict or liability without fault as the foundation of governing to the employer`s civil liability in Iranian law through juridical bases arranged in the Civil Code and Islamic Penal Code such as theory of conventional invocation of damages and ambiguity resolution about Article 12 of the Civil Liability Code.

Discussion about liability based on fault and the effect of fault in liability is an important topic in today’s law. However, given that the laws have not explicitly required the establishment of fault in causation, there are different views on what role to assign to the fault in tort judgments. Although damage, liability, causation and fault are favorite topics in fiqh (Islamic law) and extensive discussions are devoted to them, they do not convey an explicit position about the place of causality and they have not addressed the “what we are in”  theoretically and have not given an independent topic to this issue. Thus both in fiqh and in Iranian law, there are serious uncertainties around the essential question whether any causality relation is enough for necessity of compensation or there should be an element of fault so that a ruling for compensation is issued. And if the latter view is accepted, where is the domain of fault? Despite what is sometimes said in fiqh, detailed reviews indicate that there is consensus among jurists that fault has no role in liability caused by direct loss (itlaf), and inflicting loss and causality are enough for liability. Therefore, it can be said that the domain of effect of fault in civil liability is limited to the indirect loss (tasbib). Islamic jurists, however, have conflicting views over indirect loss. Some have not required fault for liability in this category while majority of them, based on rules such as “the culprit is only liable for what he intended” and “there is no warranty in what is not considered harm by custom and even if it entails what is considered harm”, believe that in the event of indirect loss, the loss cannot be attributed to the agent and hence the liability doesn’t apply to him or her unless fault (even if in the objective sense) can be established. This view on indirect loss can be clearly understood  from the writings of jurists such as Gazali, Allama Helli, and Al-Karraki. Thus whenever it is impossible to predict the loss  to be resulted from an act so that rarely does that act lead to loss, that action is not subject to liability even if it leads to loss in the particular case. They believe that there is no evidence in the divine texts upholding that causation alone can bring about liability. Liability is, rather, but that accountability in causation is based on the coincidence of causality, the reasonable attributability of loss to the act, and about the establishment of the agent’s fault. In the Iranian law too due to lack of specification, lawyers have followed the same paths and there are two viewpoints among them. Some believe that in neither of direct and indirect losses, does the element of fault have any role and the realization of the three prongs of harmful action, loss and causation is enough for the compensation. This is while the majority of lawyers believe that the the motion for liability will be granted only when the fault exists in the committed act. In their opinion, the role and effect of fault in liability can be inferred not only from the articles 333 and 335 of the Civil Liability Act enumerating some variations of the indirect loss but from the articles 506 and 537 of the Islamic Penal Code. Hassan Emami supports this theory and believes that whoever damages other peopl’s properties will be liable only when he or she has either neglected the predictable results of his or her actions or has committed the act having thoseresults in mind. Given what was mentioned above, this article suggest that applying only one of the mentioned theories to the vast array of examples some of which are quite complicated and to diverse social and legal relations among humans is not reasonable and that a sound, principled approach would be to consult common usage and to use it as a criterion for proving or disproving the role of fault in liability caused by indirect loss.This study is carried out in an analytical-descriptive library method referencing original sources of fiqh and credible law books, and evaluates different viewpoints and their reasoning,  examining the soundest among them more thoroughly.