Abstract:
The present article examines the commutative and proprietary nature of personal lease contracts in Shia jurisprudence and Iranian law in four sections. To this end, first, the concepts of commutative and proprietary contracts in Shia jurisprudence and Iranian law are studied to provide a background for subsequent discussions. In the second section, the status of personal lease is explained in terms of this classification. The decisive theory of Shia jurists and, consequently, the position of the Civil Code of Iran is based on the proprietary nature of personal lease. Therefore, the third section is dedicated to comparing the effects in the proprietary and commutative theories of personal lease, and the fourth section to examining the cases of commitment and non-commitment of jurists to the proprietary theory. Finally, after explaining the concepts of property and ownership, an attempt is made to justify the proprietary nature of personal lease.
Machine summary:
2) Regarding the specific employee (ajir khas), the labor power that has become the subject of the contract is specified; however, the important objection is that this power must come into existence as a result of his recent decision and through him, meaning the benefit is inseparable from his personality and will; whereas the benefit of things is a quality that arises naturally or as a result of human art and industry in the property, and without needing the will of the owner, it is obtained either by itself or as a result of the lessee's work.
In justifying why the Civil Code has considered sale and lease to be proprietary contracts in all cases, it has been said: The Civil Code, following the jurists who considered "ownership fi al-dhimmah" to be a type of ownership, and also because the contract leads to proprietary transfer without the need for any other cause, has called such contracts proprietary; otherwise, ownership in its current conventional sense, meaning an exclusive real right, is not the direct effect of any of them (Katouzian, Encyclopedia of Specific Contracts, 1378: 567/1-568).
This is while, from a legal perspective, only the first case can be the subject matter of ownership; because in the definition of ownership, it is said: it is a constructive relationship that exists between property and a person, giving them the right to exclusively perform any disposal they wish within the limits of the law (Katouzian, General Theory of Obligations, 1374: 361).
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