جستجوی مقالات مرتبط با کلیدواژه « Legal Set-off » در نشریات گروه « علوم انسانی »

Despite of acceptance of possibility of set-off by most legal systems, There are various approaches in expressing the concept of coercive set-off, it’s grounds, realm and effects. Some approaches such as rational set-off, canonic set-off and voluntary set-off in Islamic jurisprudence and automatic set-off, legal set-off and declaratory set-off in civil law system has used which as an substantive rules causes to extinction of two mutual debts and the extinction of both of them. On the contrary, in English legal system, except in exceptional cases, set-off is a procedural rule that, if invoked by defendant and accepted, it merely results in the order to stay the main action by court in the amount of counterclaim and not necessarily occurring of substantive set-off and extinction of two mutual debts. Traces of such an approach are seen by some Sunni jurists and similar institutions as the lien in Islamic jurisprudence. Article 295 of Iranian Civil Code, raised the phrase"Ghahri set-off", on some insights in Islamic jurisprudence and civil law system without explicitly defining it’s meaning. The earliest commentators of civil law, interpreted that phrase as rational set-off and automatic set-off, Although the French legislator had replaced the legal set-off in the 1804 Civil Code, which required the defendant to plead in court, in the 2016 reforms, she again turned to automatic set-off. Careful attention to narrative documents of jurisprudential and thinking on the terms used in civil law brings it closer to the concept of voluntary set-off in jurisprudence and legal set-off and declaratory set-off in civil law.

The fall of the two opposing religions automatically to the extent that they equate with each other, from the moment of the intersection inspired by the term ipso jure in Roman law and influenced by the ideas of Duma and Putie in French law became a rule, but from there The concept of purity was largely exaggerated and unrealistic. In order to resolve the conflicts around it and bring it into line with reality, the concept of legal purity was enshrined in French civil law and the concept of declared purity in German law. Is. Article 295 of the Civil Code of Iran introduced the phrase "coercive purity" inspired by some views in Islamic jurisprudence and the written legal system. Due to the ambiguity in the meaning of the word "coercion" in jurisprudential books, most legal writers considered it as equivalent to automatic purity or legal purity. The purpose of this study is to examine the purity in the French and German legal systems by looking at the coercive purity in Iranian law and identifying the strengths, weaknesses and gaps of existing regulations and the research method in writing this article is analytical-descriptive. Finally, it seems that careful attention to the jurisprudential background of the subject and the expressions used in civil law brings coercive purity in civil law closer to the concept of declarative purity in German law and voluntary purity in Islamic jurisprudence.