نوع مقاله : مقاله پژوهشی
نویسندگان
1 ارشد حقوق خصوصی دانشکده حقوق دانشگاه قم، پژوهشگر سطح چهار رشته فقه و حقوق خصوصی مجتمع فقه حقوق و قضای اسلامی
2 دانشیار گروه حقوق خصوصی دانشکده حقوق دانشگاه قم
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Loss of lucrum cessans (loss of expected profit) is a concept that may arise in a considerable number of civil disputes. Over the years, Iranian legislators have adopted sometimes conflicting rules regarding the scope of loss of profit and the possibility of claiming it; a contradiction that can be seriously criticized for reflecting either excess or deficiency in the legislator’s approach. Provisions of the Iranian Civil Procedure Code of 1379 (2000) also contain expressions that, in terms of both their literal wording and their legal implication, appear inconsistent with one another, to the extent that the wording of some provisions seems to preclude the recovery of loss of profit. Nevertheless, in 2013, the legislator adopted a different approach—one that gave rise to new ambiguities and even further uncertainty. In this study, after clarifying the relevant doctrinal and legal concepts and examining the semantic scope of loss of profit, the manner in which the law deals with this concept is analyzed. Moreover, judicial practice is examined through a descriptive-analytical approach and in comparison with Egyptian law. The aim is first to delineate the doubtful boundaries of loss of profit in Islamic jurisprudence and positive law, and then to align them with statutory provisions while critically examining the objections raised against such provisions. In addition, the legislative trends and existing case law are analyzed and compared. The findings show the extent to which the approach of legislators and courts conforms to the foundations of Islamic jurisprudence and, ultimately, which approach is more appropriate for resolving legislative conflicts in the field of loss of profit under Iranian law. In this regard, the legislator’s prohibition has largely been grounded in the perception of loss of profit as a form of contingent damage.
کلیدواژهها [English]
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