Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

Civil Liability Arising from Possession Claims in English Law and The Possibility of Adapting it in Iranian Law

Document Type : scientific research paper

Authors
siavash sotoudeh 1
alireza lotfi dodaran 2
mozafar bashkoh 2
ebrahim noshadi 3
1 PhD student, private law department, Islamic Azad University, Ardabil branch, Ardabil, Iran.
2 Associate Professor, Department of Private Law, Islamic Azad University, Ardabil Branch, Ardabil, Iran.
3 Assistant Professor, Department of Law, Mohagheg Ardabili University, Ardabil, Iran
10.22034/law.2023.1989176.1222
Abstract
One of the most important areas of civil liability, civil liability is derived from possession lawsuits, during which the aggressor; By committing a behavior on his own or another's property, he causes damage to others. In England, possession lawsuits can be filed in the form of two lawsuits: aggressive (adversary) and private (private) possession lawsuits, and contrary to Iranian law, there is no provision for obstruction lawsuits, and this lawsuit is also in The format of the nuisance suit is brought up. Now, the basic question is, which of the well-known and governing theories of civil liability does the English legal system follow in dealing with possession claims (opposed possession and nuisance). To answer the question, the case law of England, which is the main basis of the country's legal system, must be examined.
This article was written with the aim of civil liability arising from possession claims in English law and the possibility of adapting it in Iranian law. In terms of the purpose, the present research is an applied research, and in terms of the implementation method, it is considered part of the descriptive-analytical research. The library method was used to collect information, and the data collection tool is mostly written and theoretical. The findings of the research showed that the seizure lawsuits in Iranian law include: aggressive seizure lawsuit, nuisance lawsuit, and obstruction lawsuit. Like the contracts, the legislator has stated the common and specific conditions and elements of these claims, and the persons and judicial authorities are obliged to submit them under the same title by meeting the elements and conditions mentioned in the law. The immovable property of the object of possession, the claimant's prior possession, the defendant's right of possession, and the aggressiveness of the defendant's possession are common elements of all three lawsuits. On the other hand, the findings of the research showed that the civil liability resulting from possession claims in the laws of Iran and England is based on fault. Of course, in the case of aggressive occupation, the plaintiff does not need to prove the occurrence of damages in order to claim damages and compensation for the days of occupation, and mere occupation without consent is sufficient to fulfill the responsibility of the subsequent occupant. However, in the case of nuisance both in Iranian and English law, the claimant must prove the damage, which means that in addition to interference and disturbance in possession, damage is also one of the elements of filing a liability claim. English judges, by analyzing the elements of similar lawsuits, apply the result in similar cases, and over time it becomes the custom of judges without waiting for its legislation by the legislature.
Keywords
Possession
disturbance
immovable property
civil liability
former possessor

Subjects

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