نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار، گروه فقه شافعی، دانشکدة الهیات و معارف اسلامی، دانشگاه تهران، ایران
2 دانشیار گروه حقوق خصوصی، دانشکدة حقوق و علوم سیاسی، دانشگاه تهران، ایران
3 دانشجوی دکتری، دانشکدة حقوق، الهیات و علوم سیاسی، دانشگاه آزاد اسلامی، واحد علوم و تحقیقات تهران، ایران
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
Abstract
Discussion about liability based on fault and the effect of fault in liability is an important topic in today’s law. However, given that the laws have not explicitly required the establishment of fault in causation, there are different views on what role to assign to the fault in tort judgments. Although damage, liability, causation and fault are favorite topics in fiqh (Islamic law) and extensive discussions are devoted to them, they do not convey an explicit position about the place of causality and they have not addressed the “what we are in” theoretically and have not given an independent topic to this issue. Thus both in fiqh and in Iranian law, there are serious uncertainties around the essential question whether any causality relation is enough for necessity of compensation or there should be an element of fault so that a ruling for compensation is issued. And if the latter view is accepted, where is the domain of fault? Despite what is sometimes said in fiqh, detailed reviews indicate that there is consensus among jurists that fault has no role in liability caused by direct loss (itlaf), and inflicting loss and causality are enough for liability. Therefore, it can be said that the domain of effect of fault in civil liability is limited to the indirect loss (tasbib). Islamic jurists, however, have conflicting views over indirect loss. Some have
not required fault for liability in this category while majority of them, based on rules such as “the culprit is only liable for what he intended” and “there is no warranty in what is not considered harm by custom and even if it entails what is considered harm”, believe that in the event of indirect loss, the loss cannot be attributed to the agent and hence the liability doesn’t apply to him or her unless fault (even if in the objective sense) can be established. This view on indirect loss can be clearly understood from the writings of jurists such as Gazali, Allama Helli, and Al-Karraki. Thus whenever it is impossible to predict the loss to be resulted from an act so that rarely does that act lead to loss, that action is not subject to liability even if it leads to loss in the particular case. They believe that there is no evidence in the divine texts upholding that causation alone can bring about liability. Liability is, rather, but that accountability in causation is based on the coincidence of causality, the reasonable attributability of loss to the act, and about the establishment of the agent’s fault. In the Iranian law too due to lack of specification, lawyers have followed the same paths and there are two viewpoints among them. Some believe that in neither of direct and indirect losses, does the element of fault have any role and the realization of the three prongs of harmful action, loss and causation is enough for the compensation. This is while the majority of lawyers believe that the the motion for liability will be granted only when the fault exists in the committed act. In their opinion, the role and effect of fault in liability can be inferred not only from the articles 333 and 335 of the Civil Liability Act enumerating some variations of the indirect loss but from the articles 506 and 537 of the Islamic Penal Code. Hassan Emami supports this theory and believes that whoever damages other peopl’s properties will be liable only when he or she has either neglected the predictable results of his or her actions or has committed the act having thoseresults in mind. Given what was mentioned above, this article suggest that applying only one of the mentioned theories to the vast array of examples some of which are quite complicated and to diverse social and legal relations among humans is not reasonable and that a sound, principled approach would be to consult common usage and to use it as a criterion for proving or disproving the role of fault in liability caused by indirect loss.
This study is carried out in an analytical-descriptive library method referencing original sources of fiqh and credible law books, and evaluates different viewpoints and their reasoning, examining the soundest among them more thoroughly.
کلیدواژه‌ها [English]
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