Founding the Institution of Causation and Perpetration, Necessity or Non-Necessity?

Document Type : Research Article

Author

Professor of University of Tehran, Farabi College

Abstract

In most juridical books and under “usurpation”, “retaliation” and “blood-money” chapters, jurisprudents have spoken of the two institution of “perpetration” and “causation” and enacted some rules, for example if both cause and the actual perpetrator exist, the actual perpetrator is responsible unless in cases in which cause is stronger. The two have been reflected in laws as well. Regarding perpetration, causation, and types of perpetration and etc., many discussions have been made in juridical and legal books. Some scholars such as Muhaqqiq Najafi (author of Jawahir al-Kalam) and Muhaqqiq Maraghi (author of ‘Anawin), however, are of the opinion that, since the terms “cause” and “the actual perpetrator” have not been used in hadiths and there is controversy between jurisprudents about definitions and instances of the two terms, discussion about causation and perpetration is a superfluous and verbal one and what is of importance is attributing damage or crime to someone, whether he is the actual perpetrator or cause. The present article studies and evaluates the scientific and practical differences which may be between the two institutions. Evidently, if it is proved that there are such differences then establishment of these two institutions and discussing about them are required. Otherwise, one has to accept the opinion of the author of Jawahir al-Kalam and the author of ‘Anawin according to whom discussing about the two is a superfluous one.

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References

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Private Law
Volume 18, Issue 2
Autumn & Winter
October 2021
Pages 251-275

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