A Comparative Study of the Terms and Basics of Third-Party Recourse in Non-Debtor Performance in the Legal System of Afghanistan and Iran

To meet their needs, people form communities and establish different relationships, including legal relationships. In legal relations, the discussion arises from the creation and collapse of obligations. Different legal systems have provided different methods for the collapse of obligations, the most important of which is the fulfillment of the obligation. The problem statement of this paper is that, although the most natural mode of payment is payment by a committed person, sometimes the discussion of payment by a third party or a non-debtor person is also raised. The Civil Code of Afghanistan in its articles 806, 898, and its subsequent articles, and the Civil Code of Iran in its Article 267 have accepted the third payment institution with the effect of the fall of obligation and recourse. Although the appearance of Article 267 of the Civil Code of Iran considers the third-party payment conditions to be permission, according to some Iranian jurists, the permission of the mentioned article is a presumption of not intending to donate.Therefore, the condition of the third reference is the lack of intention to donate, not permission. Accepting this theory, the basis of reference in both legal systems will also be the third payment institution itself, so there is no need to look for other legal formats for third-party reference. In this research by using the descriptive-analytical type of qualitative research method we come to the conclusions of this paper. The results of this paper showed that, in both legal systems, the reference condition is the intention not to donate, not permission. The third party can appeal to the debtor by proving that he did not intend to spend at the time of payment, even in cases where the payment was made without the debtor's permission. To prove this condition, can use evidence such as the debtor's permission to pay, to have an interest in payment, to be used as a proxy, etc. The third appeal is possible in the cases where the condition of the intention of non-eligibility is proven. As a result, when a third party has made a payment in a situation where there is neither the debtor's permission to make the payment nor the official guardian, if the third party can prove his intention of not donating with various proofs, he can go to the debtor to receive what he has paid. At the end, in this research, practical suggestions have been presented to solve the problems of third-party recourse to the debtor and to resolve the contradictory perceptions that have arisen about the condition and basis of recourse from the articles of the civil law of Afghanistan and Iran.