خلاصة:
Contractual guarantee consists of transferring the liability of the principal debtor to the liability of the guarantor. This type of guarantee is called contractual guarantee, and its formation requires offer and acceptance; the offer is from the guarantor and the acceptance is from the beneficiary. The principal debtor is a stranger to this contract, and even their consent is not a condition. In a contractual guarantee, the commitment to pay property is voluntary, and the obligor assumes the responsibility by choice. This commitment is a direct effect of the contract, and it occurs either by virtue of the contract of guarantee or by virtue of the contract of assignment. In a contract of guarantee, the guarantor's liability toward the principal debtor is normally clear, and they are not indebted to them. A bank guarantee has a nearly similar title to a contractual guarantee and shares similarities; however, the important difference between these two is that the bank guarantor's commitment to pay (in a bank guarantee) is independent of the commitment of the guarantor (or the primary obligor), whereas the guarantor's commitment in a contractual guarantee is subordinate to the commitment of the primary obligor. Based on the principle of the subordination of the obligation arising from a contractual guarantee, the guarantor has the right to invoke the defenses that the principal debtor possesses against the beneficiary. Whereas, according to the principle of independence of a bank guarantee, the guaranteeing bank cannot invoke defenses arising from the underlying contract. Therefore, a bank guarantee is different from a contractual guarantee and should be considered an unspecified contract where the parties are the bank and the beneficiary. In the present research, using an analytical-descriptive method, a comparative study of the contract of guarantee in the Civil Code with the guarantees of the International Chamber of Commerce is conducted.
ملخص الجهاز:
" 1- Articles 307 to 337 of the Civil Code A Comparative Jurisprudential and Legal Study of the Contract of Guarantee in the Civil Code with International Chamber of Commerce Guarantees / 15 From the appearance of this article, it seems that the authors of the Civil Code have taken into account and followed the theory of 'transfer of liability' (naql-e zimmah) which is accepted in Imami jurisprudence.
However, in Article 698 of the Civil Code, there is an explicit mention of the transfer of liability: "After the contract of guarantee has been validly executed, the liability of the principal debtor is discharged and the liability of the guarantor becomes occupied towards the beneficiary.
2- Shahbazinia, Morteza, Tafreshi, Mohammad Issa, The Independence of Bank Guarantees and its Effects in International Trade Law, Mofid Quarterly, No. 37, Year 1382, Comparative Jurisprudential and Legal Study, the Contract of Guarantee in the Civil Code with ICC Guarantees / 21 Conclusion The Civil Code in Article 684 has accepted the view of Shia jurists.
In Iranian law, given the distinction between the international bank guarantee and the contractual guarantee and the guarantee stipulated in the Commercial Code, this new contract can be considered a type of private contract based on Article 10 of the Civil Code.
A Comparative Jurisprudential and Legal Study of the Contract of Guarantee in the Civil Code and the Guarantees of the International Chamber of Commerce / 23 List of Sources and References ــ Emami, Seyed Hassan, Civil Law, 6th edition: Tehran, Islamic Bookstore, 1366, Vol. 1 and 2.
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