donee

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.

Making a will by the testator and accepting or disclaiming it by the donee and executor requires the intention. As a rule, the main element of any juridical act (whether a contract or a unilateral juridical act) is the intention. As one of the types of juridical acts, the testamentary (will) is not exempted from this rule. Indeed, as one of the judges of the Supreme Court of Virginia stated: “Intention being the life and soul of a will, it can hardly be imagined, I presume, that a man can make a will without intending to do so, or give by it more than he means to give".In Iranian law, when discussing the intention of individuals in a testamentary (will), it is important to take care of the intention of the testator, donee, and executor. Thus, in the will, on the one hand, the testator wants to bring his wish to the fore to manage the affairs and property after death. On the other hand, the donee or executor (of course with exceptions) can disclaim the will for various reasons. Therefore, the principle of sovereignty of the intention in the will can be examined from the angles above.American law is almost similar to Iranian law. In this legal system, when the principle of sovereignty of intention is considered from the perspective of the testator, the term "Freedom of Disposition" is used. On the contrary, when the topic under discussion is related to accepting or disclaiming the will by the donee, the term "Freedom of Inheritance" is used. Based on this, the principle of sovereignty of the testator's intention means the testator is a person who decides which property to transfer to whom and to what extent. The principle of sovereignty of the donee's intention also means the testator's authority to accept or at least disclaim the will. In this legal system, the "Testamentary Trust" is also used to fulfill the testamentary. In the testamentary trust, the testator accommodates the desired property to a person named "Trustee" so that he can manage the said property as a "Fiduciary" in favor of the "Beneficiary"."Principle of Sovereignty of the Intention" has now created these questions in the authors' minds: First, what is the basis of the principle of the sovereignty of the intention of the testator, the donee, and the executor? Second, can we imagine limitations for the intention of the testator, donee, and executor? If the answer is “Yes”, what are the examples of these limitations?In this article, by a comparative study of Imamia Jurisprudence, Iranian and American Law, an attempt is made to answer the above questions with a descriptive-analytical method and by referring to library sources. The reason for adapting this issue to American law can be summed up in two ways: First, in the legal system of this country, issues related to wills (especially the sovereignty of the will) are very important and have been examined in detail by scholars in the field of inheritance and wills. Second, Iranian jurists consider Imamia Jurisprudence when examining the challenges raised in the realm of wills, contrary to the approach that exists in the law of contracts and civil liability. Although this approach seems to be acceptable and good considering the Iranian civil law based on Islamic jurisprudence, but it cannot stop the curious mind from comparing the will rights with the western legal systems. In the end, after studying the history of the mentioned principle, the following results are obtained: First, the testator's natural right, his motivation, securing the interests of the testator, setting the behavior of potential heirs, and duty to social cooperation are considered the basis of the testator's will. Also, preserving the independence of the donee and executor, the cooperation of the donee in managing the distribution of the estate, and ensuring the interests of the testator are the basis of the sovereignty of the testator's will. Second, while the formalities of making a will, the necessary heirs, the mandatory rules, and religion are the limitations of the sovereignty of the intention of the testator, the formalities of accepting or disclaiming the will and killing the testator by the donee are the limitations of the sovereignty of the intention of the donee and executor.

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.