تحليل تعهد زوج مبني بر تمليك مال آينده به عنوان مهريه با تأكيد بر رويۀ قضايي

Abstract This study examines the husban‎d’s obligation to convey future property as mahr (dower) in Iranian law, as one of the issues that persistently arises within the legal an‎d judicial order of Iran. In this regard, using a descriptive–analytical method an‎d drawing on Islamic jurisprudential sources an‎d legal doctrine, it first revisits the concepts of obligation, property, future property, an‎d conveyance. By relying on the distinction between primary intelligibles an‎d secondary intelligibles, it shows that future property, although—at the time of the contract—lacks an external substrate an‎d actual existence, nevertheless belongs to the category of constructive property, an‎d thus possesses the capacity for constructive conveyance. Next, by re-examining the nature of marriage an‎d mahr, it is argued that marriage is to be regarded as a non-commutative contract, an‎d that mahr, in essence, is not the consideration for buz‘; rather, it is a compensatory institution grounded in the rule of no harm (lā ḍarar). In this connection, the theory of “mahr as compensation” is introduced. Therefore, within the framework of this theory, the existence of the mahr at the time of contract is not necessary, an‎d the determination of mahr, in view of this approach, is accompanied by customary tolerance. However, in any event, such customary tolerance should not lead to the acceptance of a mahr that is absolutely uncertain. Ultimately, the output of the present study is that, given the analysis of mahr as a compensatory institution, an‎d while accepting future property within the framework of rational legal constructs, an‎d the possibility of conveying a non-existent object in an equitable/constructive manner, the husban‎d’s obligation to convey future property as mahr is justifiable under Iranian law, an‎d its various forms may be interpreted within a coherent framework. Keywords: Obligation, Future Property, Conveyance of a Non-Existent Object, Mahr, Rule of No Harm (Lā ḍarar).

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