A Survey of the Inclusiveness of the Causes of Tortious Liability in Jurisprudence

Subject Areas : All jurisprudential issues

Alireza Feyz ¹ (استاد گروه فقه و حقوق اسلامی، واحد علوم تحقیقات، دانشگاه آزاد اسلامی، تهران، ایران)
Javad Vahedi zade ² (دانش آموخته دکتری فقه و حوق اسلامی، واحد علوم تحقیقات، تهران، ایران)

Received: 2014-10-15 Accepted : 2014-10-15 Published : 2009-03-21

Keywords: rule of prior possession, destruction, causation, aggression, unjust tortious act,

Abstract :

Revisiting the causes and circumstances of tortious liability and in ajurisprudential approach, the present article studies theirinclusiveness and comprehensiveness. It is quite natural that the titleof “causes of liability “ makes the logical reader expect theircomprehensiveness. Basically, lack of comprehensiveness mayleave a serious harm to a methodological research. Causes ofliability in fact are circumstances bringing liability based on textualproofs, rational proofs , and common usages of the reasonable. Forinstance, liability in the “rule of prior possession” is based on unjustpossession, and in the two rules of destruction and causation arebased on imposing unjust damages directly or indirectly. Theapproach taken in this article may rely on the views of certain greatjurisprudents. For example, discussing the rule of prior possession,some have explicitly stated that most of the regulations of liabilityare based on the prevailing custom. Thus there is no solution but incustom. These regulations are also attributed to the divine law giverdue to his silence toward them. Some others have asserted that therule of destruction is not only a rule in divine law, but it is a rationalrule and one based on the practices of the reasonable. In view of thestructure of this discussion and the above mentioned views, theresearcher mostly adopts either of the following methods.a) He gives semantic expansion to the causes of liability with theirrequired evidence thus including all cases bringing liabilityregardless of their proofs.b) In addition to adopted causes, the researcher raises new ones tocover those not supported with previous causes. This liability relieson the verse of aggression, and rule of prohibition of detriment. Theauthor has taken here the first method. Indicating that the textualand traditional evidence of the causes especially the rule of priorpossession are seriously argued and criticized by somejurisprudents, the author has considered the common usages of thereasonable and rational dictate as the most important and mostconvincing jurisprudential evidence for causes od liability.Therefore the semantic expansion would not face with the problemof expansion in the signification of textual proof. Relying on nontextualproofs in a second step, the author has revisited the causes ofliability trying to give a semantic expansion in the above mentionedcauses covering all causes of liability.