تاثير اضطرار در مسيوليت مدني

"NECESSITY" AND ITS EFFECT ON CIVIL RESPONSIBILITY

Necessity is known as the circumstances which makes someone to do damage to another, thus ending with a case of civil responsibility. In this article, distinctions are made from the outset between the notion of necessity and similar defenses such as duress, self-defense and force majeure. The difference between contractual and non-contractual liabilities has also to be taken into consideration while examining the effect of necessity as a factor. There are conditions required for a particular case in order to be recognized as a true case of necessity. First of all, there must be a real or imminent danger i.e. a risk necessitating the action of the defendant. Furthermore, the risk must not be created by the defendantʹs own fault. The action taken and causing damage has to be necessary for avoiding the risk, and at the same time it must be commensurate with the degree of the risk. Last but not least, one has to prove that there has not been a better way to avoid the risk other than the damaging act. As to the effects of ncessity on civil responsibility, three main approaches are reviewed. One approach is to hold the defendant fully responsible and not to regard necessity an excuse. This is a position taken by Islamic law and some countries, among them Russia and Hungry. Another approach, that of France and Germany based on the notion of negligence and behavior of a reasonable perosn, is to accept necessity as a defense exempting the inflicting party from liability. A third approach, of which Switzerland is an example, refrains from setting a general rule and favors a resort to principles of equity and discretion of the judge, taking into account the circumstances of each indvidual case. Iranian legal system makes a combination of the first and the second solutions. This is because in civil responsibility, Iranian legal system is based partly on liability for negligence and partly on liability without negligence, thus applying double standards. Later in this article two possible kinds of necessity case are dealt with, namely necessity arising out of duress and necessity arising out of mistake.