نوع مقاله : مقاله علمی پژوهشی
نویسندگان
1 هیأت علمی گروه حقوق، دانشکده علوم اداری و اقتصاد، دانشگاه اصفهان، اصفهان، ایران
2 دکتری حقوق خصوصی، دانشکده علوم اداری و اقتصاد، دانشگاه اصفهان، اصفهان، ایران
3 کارشناس ارشد حقوق عمومی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
Borrowing is among contracts that lead to acquisition according to the Iranian law, but there is disagreement among lawyers about the type of property, and since the appearance of Article 648 of the Civil Code is such that states the possibility of borrowing fungible property, some jurists do not consider the loan of non-fungible property to be correct. There is also a difference of opinion among the jurists and, consequently, among the lawyers about the borrower's responsibility to pay the price of the fungible property in case of difficulty in giving a parable and also about the borrower's responsibility to return the non-fungible property. But the basic question is that is it not possible to borrow the non-fungible property? Also, in the case of the borrower's excuse for rejecting the parable, what will be his responsibility to return? The results of this research show in a descriptive-analytical and critical way, that First; According to the opinion of the majority of the jurists, borrowing the non-fungible property is also possible; accordingly, there is no need to use other contracts such as the loan contract and Article 10. Second; in paying the price of fungible property in case of impossibility of returning the parable property, the price of the day of payment is the criterion according to the popular view, and in rejecting the price of the non-fungible property, given the borrower's responsibility as to the parable property in both fungible and non-fungible property and replacement of it with the price in non-fungible property, the price of the time of payment is valid. It seems that the legislator has paid attention to the final opinion of Mohaghegh Helli in Sharaaye’ al-Islam, an opinion that is more compatible with Articles 648 and 650 of the Civil Code.
کلیدواژه‌ها [English]
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