Academic journal article Asian Social Science

Investigation of Defects of Article 264 of Iranian Civil Code

Academic journal article Asian Social Science

Investigation of Defects of Article 264 of Iranian Civil Code

Article excerpt


Discharge of contractual obligations is one of the most important issues in (Iranian) contract law, and Articles 264 to 300 of Iranian Civil Code are devoted to this issue. Inappropriate combination of Islamic Sharia with French law causes some ambiguities in Articles 264 to 300 of the Iranian Civil Code. Moreover, the Iranian legislator has not offered definitions for some factors of discharge of obligations such as fulfilment of obligation, substitution of the obligation, and set off and recoupment. The Iranian legislator has not even mentioned on what basis it has obtained the present categorization for six factors of discharge of obligations, namely: fulfillment of obligation, cancellation of a contract by mutual consent, release from obligation, substitution of a different obligation, offset and recoupment and by acquisition of the debt. This paper exclusively aims to examine, criticize and discuss the problems arising from the Article 264 of the Iranian Civil Code. In this study, the data gathered is of the library type and the research method is both analytical and critical.

Keywords: contract, discharge, agreement, obligation, civil code, legal system, Iran

1. Introduction

The Civil Code of Iran is the backbone of its legal system. The criteria, standards, and verdicts of Civil Code flow, like blood, in all parts of the body of Iranian legal organizations or its legal system and the monumental duty of being the heart of this body is on the Civil Code. That is why great attention has been given to the codification of the Civil Code. The legislator enjoys the assistance of legal experts who are familiar with all legal concepts and a criterion as well as the values of the Iranian society (Langroodi, 2009). Law is the art of just organizing people's relationships. In this regard, there is no need to say how important the Law, obligation and contracts are. Everyone in his social life is inevitable to conclude some contracts or he may undertake civil responsibility due to the damages caused to the other.

Most of the sections of the Iranian Civil Code are shaped according to the structure of French Civil Code; thus, how the contractual law in Iran is affected by the Islamic Law and Roman-Germanic law will be discussed in this paper and then each problem will be criticized separately (Katouzian, 1997). Deep analysis of Article 264 and the necessity of providing a new theory made us argue and criticize the causes of discharge of obligations in Iran. In Article 264 of Civil Code, Iranian legislator has just mentioned causes and factors for discharge of obligation, not providing any definition of discharge of obligation or classification of the causes. As a result, Articles 264 to 300 of Civil Code of Iran have some defects (Ghasemzadeh, 2009). The obligation that is under the responsibility of the person is not eternal and will be terminated one day and this truth is more apparent in financial relations resulting from contact or civil responsibility.

In Iran, "obligation" section constitutes the main part of Civil Code, and discharge of obligation as well as its causes are stipulated in Article 264 of Civil Code (Shahidi, 2008).Iranian legislator has imitated the structure of French Civil Code and made some modifications in it and by stating Article 1234 of French Civil Code provided its own theory. However, apart from some negligible discrepancies, most of the Iranian lawyers have pointed out the problems arising from Article 264 and accepted that this Article needs to be refined. Undoubtedly, the foundation of Civil Code of Iran is, in form, similar to French Civil Code but in content is organized according to the Islamic law. In Islamic Law, the discharge of obligation is not considered as a distinct part; thus, the issues of discharge of obligation can be extracted from other chapters of Islamic law, such as sale, debt, mortgage, lessor, guarantee, draft, suretyship, donation, marriage and divorce (Shahidi, 2011). …

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