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The Role of Good Faith in the Liability of Non-Owner Possessor through a Comparative Study in German, English, and Iranian Law

Document Type : Academicm and Research

Authors

1 PhD Student in Private Law, Faculty of Law, Tarbiat Modares University.

2 Professor of Private Law, Faculty of Law, University of Shahid Beheshti.

3 Professor of Private Law, Faculty of Law, Tarbiat Modares University.

10.22091/csiw.2024.9584.2430

Abstract

The concept of good faith is recognized in many legal systems and entails significant implications. It has received particular attention and influence in German and English law across various fields. The liability of non-owner possessors (in both legal and material terms) represents one of the most important areas. This paper aims to examine the possibility of the impact of good faith on the liability of non-owner possessors regarding damages caused to the subject of possession, as well as the quality of this impact, through a library-based comparative analysis. In German and English law, the recognition of the concept of good faith and the emphasis on attributing damages to the conduct of the possessor to recognize their liability, alongside the influence of good faith in establishing this attribution, have allowed the good faith of the possessor to eliminate or mitigate their liability in both tortious (obligatory) and contractual contexts. However, in domestic law, the influence of jurisprudence and the scope of the concepts of usurpation and quasi-usurpation, particularly in cases of material possessions, limits the support for a possessor acting in good faith, and it seems that the solution to protecting a possessor acting in good faith lies in distinguishing between the usurper and the quasi-usurper. On the other hand, in legal possessions, the attribution of damages to the conduct of the possessor receives more importance, and to some extent, the situation is similar to German and English law.

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Comparative Studies on Islamic and Western Law
Volume 10, Issue 4 - Serial Number 38
December 2023
Pages 1-24
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