Transfer of Nonexistent Property and its Effects in Emamieh Jurisprudence, Iran’s Law, and French Law: A Comparative Study

In French law, ownership is the legal relation between a person and an object. Accordingly, a lease contract is not deemed a possessory contract proper. Because the property interests are actually nonexistent (i.e. imaginary) and intangible. In this light, Article 1709 of French Civil code provides that a party binds himself to have the other enjoy a thing during a certain time. That is, the contract is of a liability nature. However, in Article 466 of Iran’s Civil Code, itself based on Emamieh Jurisprudence, a tenancy contract accords ownership of interests to the tenant. The reason is that ownership in Emamieh Jurisprudence and Iran’s law is more extensive than that in French law. In the former, ownership is arbitrary and the object of the contract can be as much arbitrary. To affect ownership, there is no need for tangible or concrete thing, because ownership is essential and does not require a substance. This theory can help shed light on contract consequences such as destruction of hired object or leasehold and the contradiction between Repudiation of Contract and a Void Contract in Article 483 and 489 of Iran’s Civil Code, respectively. This study draws on analytical – descriptive methods.