چکیده:
A critical legal requirement for economic actors is the ability to secure performance obligations. This study examines two potential guarantee mechanisms: (1) conventional guarantee (ḍimān iṣṭilāḥī) and (2) guarantee under Article 10 of the Iranian Civil Code, which invokes general contractual principles. Through descriptive-analytical methodology, the research assesses the feasibility of enforcing such guarantees. For an obligation to be legally guaranteed (maḍmūn bih), it must meet three conditions: (a) constitute recognized property (māl), (b) be performable by a third party, and (c) have its legal cause (sabab) established in the debtor's liability (dhimma). The analysis reveals that most contractual obligations satisfy these requirements, and since the Civil Code recognizes cause-based liability, their guarantee appears legally viable. However, uncertainties surrounding conventional guarantee structures and the expansive nature of obligational guarantees suggest that Article 10 provides a more robust foundation. Comparatively, advanced legal systems often implement guarantee mechanisms through unions or principal contractors acting on behalf of subcontractors, offering a potential model for development. This research concludes that while both guarantee methods are theoretically feasible, the flexibility of Article 10 makes it preferable for securing performance obligations in practice.
خلاصه ماشینی:
Feasibility of Guaranteeing the Commitment to Perform an Act in Islamic Jurisprudence and Iranian Law with a Look at the Laws of Some Other Countries Ali Bi Tarafan 1*, Rabia Eskini 2, Abdolmotaleb Ahmadzadeh Bazaz 3 .
Guaranteeing the commitment to perform an act is possible through two methods: A - Technical guarantee (Daman-e Mostalah); B - Guarantee based on general rules and pursuant to Article (10) of the Civil Code.
In order for an act to be considered "Madmun-be" (subject of guarantee), it must meet the following conditions: A - It must be property (mal); B - The performance of the mentioned "act" by another must be possible; and C - The cause of it must have been created in the liability (dhimmah).
does not exist;30 C - the title of guarantee applies to this type of obligations; D - a jurist, while stating the famous opinion and claiming consensus on it, has considered the guarantee of contracts whose cause has not been created as valid and has cited generalities as the evidence for it.
Although based on the principles stated, it seems that guaranteeing a commitment to perform an act under the title of "technical guarantee" is also valid, despite this, it still 1 413Bitarafan, Ali.
34 One of the contracts that can be created pursuant to Article (10) of the Civil Code is the guarantee of a commitment to perform an act in its non-technical sense.
Ali Bitarafan / Feasibility of Guaranteeing Performance Obligations in Islamic Jurisprudence and Iranian Law ...
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