The Judiciarys Law Journal

The Judiciarys Law Journal

A New Approach to the Regulations Governing the Claim of Loss of the Specific Goods and Its Legal Enforcement

Document Type : Research/Original/Regular Article

Authors
1 Department of Private Law, Faculty of Law and Political Science, University of Kharazmi, Tehran, Iran
2 Assistant Professor, Faculty of Law & Political Science, University of kharazmi, Tehran, Iran
3 Department of Private Law, Faculty of Law and Political Science, Kharazmi University, Tehran, Iran
Abstract
According to Article 387 of the Civil Code; if a specific object is lost before delivery and without the fault or negligence of the seller, the contract is void and the contractual price is returned to the buyer. While Article 362(1) of the Civil Procedure Code and Article 46 of the Law on the Execution of Civil Verdicts express that in case of loss of the object before delivery, it is possible to claim its actual price. This research presents a comprehensive method related to the determination of the rules governing the loss of specific goods at different stages. As a result, the termination of the sale in case of loss of the specific goods before delivery is conditional on the seller not being at fault and filing a lawsuit against the seller for the delivery if the plaintiff’ claim is valid, the seller’ fault is assumed. Therefore, if the loss of objects is in the stage of execution of the verdict, its actual price will be collected. In addition, although according to Article 362 of the Civil procedure Code, the new claim can’ be brought in the appeal, paragraph 1 of this article doesn’ consider the demand for the condemned price, which was the same as the subject of the original decision, as a new claim. Also, since no reason can be found to distinguish between the implementation of Article 362(1) in the district court and court of appeal, the provision of this paragraph at any time of judicial proceedings should be considered valid. In Conclusion; in case of loss of the specified object in each of these cases, the beneficiary can change the demand for its actual price and it will not be considered a new claim.
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Volume 88, Issue 125
Summer 2024
Pages 175-198

  • Receive Date 09 February 2023
  • Revise Date 01 September 2023
  • Accept Date 03 May 2024
  • First Publish Date 03 May 2024
  • Publish Date 20 March 2024