Comparative Civil Procedure

Abstract The adjudication of claims concerning legal incapacity is considered a matter of non-contentious jurisdiction. Although no dispute arises in the strict sense or in an adversarial form in such matters, courts observe, to the extent appropriate, the principles and procedural rules governing the adjudication of disputes. The principal subject of this article is third-party opposition to a judgment declaring a person legally incapacitated. A person adversely affected by the declaration of another person’s incapacity challenged the court’s judgment as a third party, thereby raising the issue of the effects and consequences of a judgment of incapacity on persons who had not participated in the proceedings leading to its issuance. The case indirectly examines the principal elements of third-party opposition and analyzes a significant judicial decision in this regard from both procedural and substantive perspectives. The judgment clarifies the principal elements and requirements of third-party opposition to a judgment of incapacity and is therefore significant in defining the scope and conditions for exercising this remedy against judicial decisions. Its examination also contributes to understanding the role of third-party opposition in non-contentious proceedings and the protection of third parties’ rights.

Abstract A judicial decision, as the final product of the adjudication process, is not merely a determination resolving a dispute between the parties; it also reflects the official interpretation of law, the exercise of public authority, the realization of justice, and the development of judicial practice. The quality of judicial decisions, particularly in terms of reasoning, legal justification, compliance with fair trial principles, logical coherence, and social implications, is therefore essential to the legitimacy of the justice system. However, judicial decisions, as human and interpretive determinations, may contain errors, ambiguity, inadequate reasoning, or misinterpretations of law. This article employs a descriptive-analytical methodology based on library sources, legislation, principles of fair trial, legal doctrine, procedural institutions, and comparative materials to examine the philosophy, foundations, principles, techniques, and functions of judicial decision critique. The findings indicate that systematic and scholarly critique, when grounded in impartiality, verifiability, confidentiality, and respect for judicial authority, can improve judicial reasoning, transparency, consistency, and public confidence. The study concludes that institutionalising a culture of principled judicial decision critique can contribute significantly to improving the quality of adjudication, refining judicial practice, and strengthening judicial justice.

Abstract Incidental third-party objection is a procedural mechanism through which a party to a pending lawsuit challenges a previous judgment that has been invoked by the opposing party in support of its claim. Article 419(b) of the Iranian Civil Procedure Code defines an incidental objection as an objection by one of the parties to a judgment previously rendered by a court and produced by the opposing party “during the proceedings” in order to prove its claim. The judgment under consideration raises an important question as to whether the phrase “during the proceedings” constitutes a strict temporal requirement, meaning that the previous judgment must be introduced only after the commencement of the proceedings and during a subsequent procedural stage, or whether it primarily refers to the procedural context in which the previous judgment becomes relevant and thus reflects the incidental nature of the objection. This question becomes particularly significant where the previous judgment is relied upon from the very beginning of the action, including in the statement of claim.

Abstract Evaluating the scope of the clause waiving the option of lesional loss (khiyār al-ghabn) and its applicability to extreme degrees of disparity constitutes one of the fundamental challenges in contract law. This article critically examines Judgment No. 9409970906900587 rendered by the 3rd Branch of the Supreme Court, in which a waiver of the option of lesional loss "to any extent" was construed as depriving the aggrieved party of the right of rescission, even in the presence of a gross price disparity (double the actual market value). Through a jurisprudential and legal analysis of the issue—focusing on the parties’ constructive intent and customary limitation (inṣirāf), which has also been affirmed by Unified Judicial Precedent No. 821 of the General Bench of the Supreme Court—this study concludes that a waiver clause covers only customary and intended degrees of loss, without extending to extreme disparities or multi-fold price differences. Nevertheless, the judgment itself remains justifiable solely on the basis of the aggrieved party's explicit admission of full awareness regarding market practice.

Abstract ملی‌شدن جنگل‌ها و مراتع کشور، ضمن انتقال مالکیت منابع طبیعی مشمول قانون به حیطه مالکیت عمومی، در مواردی حق دریافت وجه را برای اشخاصی که پیش از ملی‌شدن دارای حقوق تثبیت‌شده نسبت به این اراضی بوده‌اند به رسمیت شناخته است. تعیین حدود این استحقاق، به‌ویژه در مواردی که ادعای مالکیت اشخاص پس از تصویب قانون ملی‌شدن و در چارچوب دعاوی مربوط به املاک واگذاری مورد رسیدگی قرار گرفته است، می‌تواند منشأ اختلاف باشد.

در پرونده موضوع این یادداشت، خواهان با استناد به رأی قطعی صادرشده در سال ۱۳۷۱ راجع به دو دانگ مشاع از پلاک خشکداران، مطالبه بهای قسمتی از جنگل‌های واقع در محدوده پلاک را درخواست نموده است؛ حال آنکه در رأی مورد استناد، جنگل‌ها و مراتع و مستثنیات ملی‌شده صراحتاً از حکم استرداد خارج گردیده بودند. شعبه سوم دیوان عالی کشور با لحاظ همین امر، استحقاق خواهان نسبت به دریافت بهای اراضی جنگلی را نپذیرفته و رأی دادگاه بدوی را ابرام می نماید . تحلیل مواد ۳ و ۵ قانون ملی شدن جنگل های کشور نشان می‌دهد که نتیجه رأی قابل دفاع است لیکن استدلال آن از حیث تبیین نسبت میان استثنای جنگل از حکم استرداد، قلمرو بند «ج» ماده ۳ و اثر ماده ۵ قابلیت تکمیل دارد

Abstract This article evaluates three judgments issued by one of the branches of the Supreme Court (the Third Branch of the Supreme Court). Using a descriptive-analytical method, and while briefly presenting the judgments issued in these cases, it demonstrates that the judges of the Court, in the rulings in question, paid particular attention to the details of the case, attached considerable value to the procedural rights of the parties, and guided the courts of first instance on important points. The judgment issued is eloquent in its drafting, and while attending to the important issue of jurisdiction, it also points out significant matters concerning procedural objections; moreover, it addresses oversight of the manner in which a document is characterized and interpreted. On an important issue such as the characterization of a document, it reached conclusions that had not been contemplated by the lower courts. Furthermore, the analysis of the effect of a criminal judgment on a legal issue was another notable feature of one of the judgments issued, and the judges highlighted an active role for the judge in the possibility of examining evidentiary proof.

Abstract Judgment No. 9509970909100539, dated 25 January 2017 and rendered by the Third Chamber of the Supreme Court of Iran, concerns the establishment of a deceased person’s legal incapacity and the evidentiary value of medical records, witness testimony, and circumstances arising from his transactions. The claimant sought to establish the incapacity of his predecessor in title during the years preceding his death in 2009. The Supreme Court, finding the investigation incomplete, required further examination of medical records and local evidence. Although the Forensic Medicine Commission could not reach a definitive conclusion regarding the deceased’s mental condition due to the lack of reliable medical records, local inquiries and witness testimony largely supported his mental soundness and continued financial activity. The Supreme Court ultimately upheld the appellate judgment.

This article examines the judgment with regard to the adjudication of a deceased person’s incapacity, the distinction between insanity and lack of maturity, the burden of proof, the presumption of legal capacity, the role of medical evidence, and the court’s duty to ascertain the truth. It concludes that forensic medical opinion, despite its specialist importance, must be assessed alongside other evidence in determining the deceased’s legal capacity during his lifetime.

Abstract The institution of interdiction (hajr), owing to its extensive effects on legal capacity and the fundamental rights of persons, is regarded as one of the most sensitive institutions of civil law and non-contentious matters. The Iranian legislature has subjected the adjudication of petitions for interdiction to special formalities, extensive investigations, and heightened supervision. The judgment of the Third Branch of the Supreme Court of Iran in a case of interdiction on grounds of insanity is a clear example of proper judicial supervision and safeguarding of the fundamental principles of judicial proceedings. In this judgment, the Supreme Court, emphasizing the mandatory role of the public prosecutor, the supervening nature of insanity, the necessity of up-to-date investigations, and observance of defense rights, identified fundamental deficiencies in the judgments of the lower courts, which led to quashing of the judgment under cassation appeal. This article, adopting an analytical-descriptive approach and drawing on the Constitution, the Civil Code, the Non-Contentious Matters Act, and the Code of Civil Procedure, examines the judgment of the Third Branch of the Supreme Court of Iran and, while explaining the theoretical foundations of fair trial, demonstrates its implications for judicial practice of courts in adjudicating petitions for interdiction.

Abstract This article critically examines Judgment No. 96099709100047 of Branch Three of the Supreme Court of Iran concerning entitlement to a contractual penalty for delay in executing the official deed of property transfer. The principal issue is the legal effect of the seller’s death before the contractual due date and the extent of the heirs’ liability for continuing the deceased’s contractual obligations. In the case under review, the seller died before the stipulated date, while his heirs faced inheritance and tax formalities; meanwhile, the purchaser had neither paid nor deposited the outstanding balance of the purchase price. The courts rejected the claim for contractual penalty, relying on the seller’s death before the due date, the absence of an agreed new date, and the parties’ reciprocal obligations. Using a descriptive-analytical method and library research, this study concludes that attributing no delay to the seller at the original due date is defensible. However, his death did not extinguish the obligation to execute the official deed or necessarily preclude the heirs’ potential liability after legal impediments were removed. Accordingly, their liability should be assessed by distinguishing the relevant periods and examining the impediments to performance and their subsequent conduct.

Abstract Abstract



Determining the date of legal incapacity is an important and complex legal issue. Establishing a person’s psychological condition may require specialized medical knowledge, while determining legal incapacity and its legal consequences falls within the court’s jurisdiction. Judgment No. 950165, dated 1/4/1395, rendered by Branch Three of the Supreme Court of Iran, is significant because it did not consider reliance solely on forensic medical opinion sufficient for determining the date of legal incapacity and emphasized considering other evidence and conducting necessary investigations. This article examines the judgment and the role of forensic medical opinion in determining the date of legal incapacity. The findings indicate that forensic medical opinion, although important specialized evidence, cannot by itself replace judicial determination. Witness testimony, medical records, and other relevant circumstances may also be considered. Where ambiguity or conflict exists, the court should conduct the necessary investigations and assess the evidence as a whole. Accordingly, determining the date of legal incapacity requires a comprehensive assessment of the evidence and coordination between specialized medical knowledge and judicial determination.



Keywords: Legal Incapacity, Date of Legal Incapacity, Evidence of Legal Incapacity

Abstract Although, in Chapter Four of the Code of Civil Procedure, concerning the hearing, the legislator has required the parties to produce at the first hearing the originals of the documents , the judge cannot, like a lifeless body, sacrifice that which, in his view, “corresponds” to reality—and which the legislator has expressly recognized in the chapter concerning the examination of evidence and under Article 199 of the aforementioned Code—in favor of the “coherence” governing the relations among words, when seeking to reconcile the foregoing obligation with the discovery of truth.The judge, is the very “consciousness” of the court whose ultimate role is embodied in the form of the judicial decision and, as a socially consequential act, is inscribed upon the summit of society’s movement toward truth.

What binds the judge is not merely the semantic relations among words, nor solely his responsibility toward the parties to the dispute; for the judge is, in reality, the representative of a society in its pursuit of truth. The course he takes, and the initiatives he undertakes with courage and boldness, constitute the manifested, articulated, and written form of a society’s own path toward attaining truth.

Abstract As the supreme judicial authority responsible for overseeing the proper application of laws within the courts, the Supreme Court of Iran does not merely focus on the final outcome of litigation; rather, its commitment to ensuring the integrity of judicial rulings compels it to pay meticulous attention to the judicial process itself. Consequently, any disregard for Article 199 of the Civil Procedure Code, or failure to address the arguments and defenses presented by the parties, constitutes a valid ground for the Supreme Court to reversal a judgment. In the present case, following the appellant’s challenge regarding the transfer of the subject matter of the lawsuit to the first plaintiff during the proceedings, the Third Branch of the Supreme Court reviewed the matter, deemed the lower court’s investigations to be deficient, and subsequently vacated the judgment, remanding the case to the court of first instance. From the perspective of ensuring thorough investigation and upholding the right to litigation, the scrutinized judgment is highly commendable.”

Abstract The judgment no. 950997090100211 dated 10/26/2016 of the Third Chamber of the Supreme Court is noteworthy from two perspectives: first, from a procedural perspective, the appeal ability of a Court of Appeals judgment in cases where the dispute doesn't concern the validity of the endowment itself but is subsidiary to it, as eviction from endowment property, has always been subject to doubt. The Supreme Court’s review indicates that the judges of the Court deemed this objection invalid. Second, from the perspective of observing the applicable law, although according to the law, all endowments that have been sold or converted into private property without religious authorization return to their status as endowments, the possessor has priority over others in renting the endowment. If he refuses to renting within thirty days from the date of the Endowment Department letter, his right is forfeited and he will be evicted. Since the Endowment Department failed to fulfill such legal obligation, the appeal of that Department regarding the judgment issued by the Court of Appeals based on issuing a non-suit order for that Department's claim of eviction from the endowed asset has been rejected. This result is in accordance with the law and is approved.

Abstract Enforcement of monetary judgments may become lengthy due to difficulties in identifying the debtor’s assets, seizure and auction procedures, and challenges raised against enforcement measures.

A significant question in Iranian civil enforcement law concerns whether an independent action seeking annulment of a judicial auction may be heard after completion of the auction process and issuance of an order transferring the property. In Decision No. 0027 dated 24 March 2016, the Third Chamber of the Supreme Court upheld the lower court’s judgment dismissing an action challenging enforcement proceedings. Several years later, the General Assembly of the Supreme Court, in Precedent-Setting Decision No. 845 dated 27 February 2024, held that where material violations have occurred during the auction process, Article 143 of the Civil Enforcement of Judgments Act does not preclude an interested person from bringing an action for annulment of the auction and the resulting enforcement deed.

This article examines the relationship between these decisions and the tension between two fundamental considerations: effective judicial protection against material irregularities and the need for speed, finality, stability, and legal certainty in enforcement proceedings.

Abstract In the sensitive and highly significant case of interdiction , which produces important and irreparable effects on individuals' rights, careful, well-documented, and comprehensive examination is a necessary and unavoidable requirement. Therefore, the court is obligated to make use of the broad powers granted to it under the Non-Contentious Affairs Act to carefully review and evaluate all evidence and documentation in the case file, and to refrain from issuing a hasty ruling. Fulfilling this requirement in practice depends on attention to several components simultaneously: a proper understanding of the particular status and nature of the interdiction case, full recourse to the court's legal powers to ascertain the truth, and reliance on sound and adequately specialized expert opinions rather than settling for ambiguous reports lacking a definitive conclusion . A comparative study with French law reveals that this requirement is recognized in that country as well; the judge's broad discretion to order an investigation, along with the approach taken by French courts in certain rulings—refusing to rely on incomplete medical certificates—attest to this requirement

Abstract In cassation proceedings, new evidence cannot be introduced, as the appeal in cassation lacks devolutive effect; the Supreme Court confines its review of the judgment's validity to the evidence already present in the case file. However, this rule does not preclude a finding that the lower court's investigation was incomplete; the Supreme Court may overturn the judgment on grounds of procedural deficiency and remand the case to the lower court with instructions to conduct the necessary proceedings and inquiries.

In the present case, an appeal in cassation was lodged three times. On each occasion, the Supreme Court deemed the lower court's proceedings and investigation incomplete. Upon the third appeal, the original document—the absence of which had consistently rendered the initial court's proceedings defective—was located. The Supreme Court received and examined the original document, then overturned the judgment and remitted the matter to the issuing court for further proceedings and evaluation of said document. The ruling by the Third Branch of the Supreme Court—regarding adherence to the aforementioned principle, as well as the review and identification of deficiencies in the investigation—stands as one of the finest and most precise rulings within the judicial system.

Abstract The negative view regarding the court's powers to discover the truth and the facts in civil proceedings must be abandoned in favor of an approach that embraces these powers for the sake of truth and factual accuracy. Today, Article 199 of the Civil Procedure Code has become one of the most significant and effective provisions of the Code for the adjudication and resolution of disputes. This article enables the judge—beyond relying solely on the evidence presented by the parties (who may lack the ability to produce it, the financial means to cover associated costs, or knowledge of the principles of proof)—to avoid being held captive by the parties' requests and arguments, which are often characterized by one-sidedness and concealment. To arrive at the truth—however relative it may be—the court must be empowered to conduct investigations and take proactive measures; failure to do so risks having the judgment overturned upon cassation review.

Abstract The Civil and Criminal Procedure Codes contain no provision governing the procedure for referring a case to the General Assembly of the Supreme Court of Iran following a second appeal on points of law. It remains unclear what is meant by the term “opinion” (nazar) in Article 408 of the Civil Procedure Code, what form such an opinion should take, and for what purpose and in what manner it should be drafted.

As can be inferred from the significant judgment rendered by Branch Three of the Supreme Court of Iran, such an opinion takes the form of a judicial decision, specifically an order referring the case to the General Assembly for adjudication. This decision is final and, being embodied in a judgment, is also served on the parties. The case is then transmitted to the Supreme Court’s Office of Jurisprudential Unification so that it may be brought before the General Assembly.

In this capacity, the General Assembly acts as an adjudicator between the Supreme Court Chamber and the lower court, although, under certain circumstances, it may refer the case back to the Chamber.

Abstract If a claim rests upon an ancient document and the original is unavailable, the court must investigate the document's existence rather than insisting on the production of the original. If the court deems the document reliable based on other oral and written evidence—or if other documents reference it and the subject matter of the document has indeed materialized (such as a delivered object of sale, a taken-into-possession endowment, an endowment that has been acted upon, or a couple living in a marital union)—then the procedural rules regarding the authenticity of the document are set aside in favor of the substantive law of proof. Under the substantive law of proof, the judge is the central figure in the evidentiary process; the litigants assist the judge, who possesses investigative powers and may undertake any inquiry or measure necessary to uncover the truth. The Court proposed an approach that effectively obviated the need to produce the original. In this case—which involved two stages of cassation review—the Third Branch initially endeavored to secure the original document and complete the investigation, issuing relevant directives; subsequently, however, it deemed the conscientious conviction of the adjudicating judges regarding the document's reliability to be sufficient.

Abstract Investigative measures are a useful and effective mechanism that, along with the reasons for proving the claim and defense, provides a clear perspective to the judge and helps him to access the facts and truths surrounding the subject of the dispute. Inspired by foreign procedural and procedural regulations, especially the French Code of Civil Procedure and Chapter Five of Chapter Seven of the CPC and NCPC (Articles 232 and following), our legislator identified this useful institution and reflected the regulations surrounding it in Chapter Ten of the Code of Civil Procedure. The importance of investigative measures is especially evident when the dispute is not worthy of formal objections and deficiencies and the court judge seeks to enter the essence of the dispute and seeks to lay the groundwork for making a substantive and final decision. Except where the defendant unquestionably accepts the plaintiff's claim or the request does not require judicial questioning and search due to strong evidence, this decision has double value in the capacity of appellate review and by the judges of the Supreme Court. Using the essence of experience and deep thinking, they understand the hidden aspects of the dispute and the shortcomings of the proceedings,

Abstract On the standard for recognizing rights in disputes over key-money and business goodwill, Iranian judicial practice has divided. Some rulings infer the right from the label in the contract or claim, others from the actual cause of the relationship. The view defended here, on the basis of a critical reading of two cassation rulings of the Third Chamber of Iran's Supreme Court, rests on distinguishing a contractual cause for sarqofli, provided in Articles 190 and 191 of the Civil Code, from a statutory cause for business goodwill, provided in the 1977 Tenancy Act. On this basis, the Third Chamber, by separating that Act from its 1997 successor, is shown to refuse treating payment as inherently rights-generating, tying its effect instead to the function it serves within the relationship. The temporal element in business goodwill, the independence of the settlement contract (solh) from the lease, and the boundary of cassation review under Articles 366 and 370 of the Code of Civil Procedure bear out this reading. The costs of the approach, in transactional security and divergent rulings, are examined and shown not to invalidate the cause standard but to point toward its refinement through unifying precedent.

Abstract Articles 384 and 355 of the Iranian Civil Code address, respectively, the two situations in which the subject matter of a sale is divisible and indivisible. Although Article 485 expressly refers to a house, it appears that, pursuant to Article 10 of the Apartment Ownership Act, the legal treatment of an apartment differs from that of a house. The basis for this distinction, in addition to the aforementioned provision, lies in the customary practice governing apartment transactions, under which the floor area is ordinarily set against the purchase price. This is particularly significant where the sale is concluded before the exact floor area has been determined on the basis of the condominium subdivision plan (soorat-majles-e tafkiki) and the official cadastral plans, and a discrepancy in area is subsequently discovered upon delivery of the property and execution of the official deed.
In such circumstances, a party who has paid a higher price but received a smaller area, or who has sold a larger area than that ultimately delivered, should be entitled to claim the difference without having a right of rescission under Article 355 of the Civil Code.