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

One important issue in Hiba contract is the possession of the donated property. It is necessary to consider this subject due to the lack of explicitness of the legislator in some cases and differences in jurisprudence and law, including the possession role in determining the subject of Hiba, the issue of constructive possession, revocation of permission in possession, and possession of shared property. This research used a descriptive-analytical method and reliable jurisprudential, legal, and judicial sources. The result is that possession position and the validity conditions of possession are the donor’s permission, the donee’s consent, and the life of both parties, and the legal capacity of the donor at the time of possession. Besides explicit and implicit possession according to the donee’s will; it seems that based on the customary possession, spiritual authority of donee and the sovereignty principle of the owner's will, we can divide the possession into physical and constructive one. The possession effect is the contract completion and ownership realization; and the possession effect of exchange in the exchangeable Hiba is the irrevocability of it. Regarding the possession role, the free transfer of benefits is not Hiba, but a valid contract based on the principle of freedom of contracts. Also, revoking the permission for possession is valid if it is before and is invalid after it. An important point is that the possession of shared property, in the refusal of the co-owner, constructive possession can be accepted; at least, giving possession by the judge is desirable.

The principle of recourse to the gift in the accepted case law besides the shaky ownership, even if it is free is not desirable. The issue of waiving the right of recourse of the creditor is significant. There is a dispute regarding this issue in Imami jurisprudence and legal doctrine. This subject is not addressed in the codified laws; therefore, it is necessary to be studied further. This research used the descriptive-analytical method and valid jurisprudential and legal sources to study the feasibility of waiving the right of recourse to the gift. Some argue that recourse to a gift is a ruling and that the waiving of the right of recourse leads to the loss of donor, and the violation of the purpose results in the forgery of the right of recourse, so they are against the validity of waiving the right of recourse. However, we can reject the arguments of the opponents in addition to some other reasons including rule of action, the requirement of nature of the contract, the principle of validity and freedom of contracts, the economic benefits, and that only interest of the donor is not intended and is a way to prevent misconduct and eliminate unnecessary protocols; hence, we can accept the right of recourse to the gift. This waiving can be explicit or implicit and may be included in the gift contract or in another requiring enclosed contract, or may be raised independently.

In this study, attempts were made to have a comparative analysis of the two legal systems of Iran and the European Union on the subject of revocation of the donation. This has been done through familiarizing with the Draft Common Frame of Reference (DCFR) which is the European Civil Code and to study the effects thereof. Though suggesting an opinion on the Iranian and European legislature's approach and its cases, it has been concluded that, despite the similarity in the purpose, due to the acceptance of the principle of revocability, the Iranian legislators have made exceptions to the notion of irrevocability. While in the EU law, due to the adoption of irrevocability principle, the rights of the donor to revoke is limited to: ingratitude of the donee; impoverishment of the donor; and the residual right to revoke (material change of essential circumstances after the conclusion of the contract) albeit with some conditions. This comparative approach to the subject has been widespread both in theory and practice and, through enlightening the minds of Iranian legislator, it can fill the legal vacuum surrounding the issue or bring about a modification of the law.