A jurisprudential study about Article 851 of the Civil Code (The condition of being born alive for appropriation by will)

The legislator has allowed willing for the embryo in the article 851 of the Civil Code following the Shi’a jurists’ idea, but on condition that it was born alive. The studies show that there is no explicit tradition proving necessity of this condition for willing, and the jurists and lawyers following the last jurists have accepted this idea and entered it into the Civil Code only by making an analogy between will and inheritance. The main prove for this idea is consensus which is firstly only about legitimacy of willing for embryo not the condition of being born alive, and secondly it is based on tradition (Madraki) which is not valid, in addition that analogy and unity of the criteria of similar matters has no legal and logical basis and therefore, invalidity of this condition is more justifiable.