Research and development in private law

Research and development in private law

Application of the substantive law of the place of residence in the occurrence of a transmission

Articles in Press

Document Type : Original Article

Authors
Majid Aziziyani 1
Ali Moafi 1
Alireza Sadeghi Kiadehi 2
1 Private law Department, Faculty of Law, University of Judicial Sciences and Administrative Services, Tehran, Iran
2 Private Law Department, Faculty of Humanities, The Islamic Azad University Sari Branch, Sari, Iran
10.22034/jpl.2026.2080230.1274
Abstract
Regarding the concept of referral in private international law, there is no single definition and there is no consensus in order to understand the issue of transference, one must first understand its origin. In the interaction of national conflict resolution systems with each other, there are three possible situations; the first situation is coordination, the second situation is positive conflict, and the third situation is negative conflict. Referral is the result of the third situation, namely negative conflict, in such a way that the conflict resolution rules of neither country consider its own law to be valid, which results in two situations: Remission and Transmission. Government’s reactions to both Remission and Transmission differ according to their approach; some have considered it acceptable and others have not accepted it. The Iranian legislator has explicitly accepted Remission in Article 973 of the Civil Code, but has not explicitly stated its position regarding Transmission, and this issue has become a source of controversy and various interpretations have been made of it. Therefore, Iranian jurists are divided into several groups. For example some people are of the opinion that the sentence referred to another law in the above article, it refers to a third country, which indicates that non-sequential Transmission has been accepted. Some also believe that Transmission is not accepted in Iran, but the present study has attempted to present a legal and judicial solution with an applied approach. The authors, through practical analysis and examination of the opinions of Iranian jurists, believe that Article 973 of the Civil Code is an exception to Article 7 of the Civil Code, and both of the aforementioned articles are exceptions to Article 5 of the same law, so that in case of doubt regarding the application of Article 973, which is ambiguous, reference should be made to the original or first principle, which is Article 5. Therefore, according to this opinion, the Iranian judge should issue the judgment on the claim based on the substantive provisions contained in the law of origin.
Keywords
Conflict of laws
Conflict Resolution Rule
Remission
Transmission
Lex fori
Subjects
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