Download citation:
BibTeX | RIS | EndNote | Medlars | ProCite | Reference Manager | RefWorks
Send citation to:

---

The discussion is about whether the Article No. 265 of Civil Code just has the meaning of non-voluntarily, or the presumption of owing of the one who gives the property is deduced from it. There are two opinions in this regard, and the supporters of either of these have their own reasons to prove their opinion. Upon the propounding, analyzing and surveying these proofs, first the paragraph 1 of the Article 1235 of French Civil Code should be compared with the Article of 265 of our Civil Code to know in which of these articles owing of the one who gives the property is presupposition of legislator. Upon reviewing the record of Islamic jurisprudence of the property which is given to other directly or paying the debt by virtue of assignment, as well as difference of them with each other and through mentioning number of High Court of Cassation decisions, we will enter into explaining the position of judicial precedent about the contents of these Articles to understand which of these views is in conformity with presumption of the courts. Finally separating the various presumptions of the issue from each other, we’ll find out that payment through assignment from the view point of tenet and injunction is different from rendering the property directly, and we must accepet that the only existing presumption in this Article is the presumption of being non-gratuitous and there exists no other presumption. In other words, if the legislator has not sought the creation of the presumption of owing of the property giver, it is for the sake of non-existing of such appearance in the custom.

Keywords: Non-Gratuitous, Presumption, Restitution, Assignment, Principle of Exemption

Full-Text [PDF 230 kb]   (7670 Downloads)    

Add your comments about this article : Your username or Email:

---