Waiving the right of recourse to the gift in Iranian law

Document Type : Original Article

Authors

1 Ph.D . student in (private law). Maybod Branch, Islamic Azad University, Maybod, Iran

2 Assistant Prof Department of Law. meybod branch. Islamic Azad University. Meybod. Iran. (Corresponding Author).

3 Assistant Prof Department of Law. meybod branch. Islamic Azad University. Meybod. Iran.

10.29252/jlr.2021.221428.1890

Abstract

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.

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Legal Research
Volume 25, Issue 99 - Serial Number 99
December 2022
Pages 395-417

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History

  • Receive Date: 12 April 2021
  • Revise Date: 22 November 2021
  • Accept Date: 14 December 2021

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