Private Law
Ehsan Bahrami; Sayyed Amin Pishnamaz; Amir Zare
Abstract
The claim is considered against the defendant when the court can consider the judgment against the defendant, assuming that the plaintiff's claim is true. This statement is effective in a lawsuit with the same respondent and defendant. However, its effectiveness in the claim against the deceased is questionable; ...
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The claim is considered against the defendant when the court can consider the judgment against the defendant, assuming that the plaintiff's claim is true. This statement is effective in a lawsuit with the same respondent and defendant. However, its effectiveness in the claim against the deceased is questionable; because in this claim, the plaintiff's claim is against the deceased and the defendant is a person other than the deceased, ie his heir. Hence, the question is «how can we identify the claim against the heir in such a lawsuit?» In this article, an attempt is made to provide an answer to this question by the library and field methods. In this regard, by searching the opinions of Shia’h Jurisprudents, it is observed that they have considered some conditions necessary for the claim against the heir. In this article, while reviewing these views, which have been discussed below regarding the conditions for taking the oath to the heir, the hypothesis is strengthened and proved that the relationship between the conditions for being the claim against the heir and the conditions for taking the oath to him is general and peculiar in some respects meaning that by proving three conditions including death, remaining the estate, and the inheritance relationship between the decedent and the defendant, the claim is against the heir. In Iranian law, in addition to accepting the need to prove the foregoing conditions to be the claim against the heir, an inheritance certificate as a way to detect the death and the relationship of inheritance between the deceased and the defendant and the rules on acceptance and non-repudiation of inheritance as a way to detect remaining of the estate is identifiable.
