Opposability Theory on the Civil Liability Law: Comparative Study in Feqh & French Law

The basis of civil liability is so important that it would not be exaggerating if one says, the basis of civil liability is the most important issue in private law. From the beginning of the formation of civil liability law, the lawyers were seeking a basis to justify it and the various theories in this field have been presented. In this article, "opposability", as a new theory on the basis of civil liability is provided. According to this theory, the basis of civil liability, is the opposability of damage to the wrongdoer. The criterion of opposability is the relation of causality customary. This theory also has a basis in religious jurisprudence (FEQ) and can justify all responsibility rules in religious jurisprudence. Some of Islamic jurists have mentioned this issue in their works. In spite of the first section of the Civil Liability Act and under the doctrine of some lawyers who have believed to the theory of fault, in Iranian law, the theory of opposability is more suitable than other theories. In western legal systems such as French law and Common law, liability is principally based on the theory of fault, but in some cases, liability without fault is accepted. The doctrines of these systems have presented and accepted new theories of liability and it seems that lawyers welcome the theory of opposability.