A Jurisprudential and Legal Study of Delivery and Possession in Traditional and Electronic Contracts from the Perspective of Imamiyyah Jurisprudence, Iranian Legal System, and Electronic Commerce

Document Type : Original Article

Authors

• ُSeyyed Hamzeh Hosseini
• Jamshid Masoumi

Faculty of Theology of Islamic Azad University Central Tehran Branch Tehran Iran

Abstract

Modern communication systems, such as the Internet, have enhanced the communicative and financial capacities of human societies. This development has led traditional commerce to be increasingly replaced by electronic transactions. Despite their advantages and benefits, such contracts entail certain challenges. One of the fundamental consequences of a contract is that the buyer is obligated to pay the price (thaman), while the seller is required to deliver the subject matter (muthman). However, in electronic contracts, the payment and delivery process differ from traditional ones, as the concepts of time and place are not physically manifested. This raises questions such as: how should the delivery of thaman and muthman be understood in electronic contracts?

In the present study, using a library-based method and adopting a descriptive-analytical approach, the concepts of delivery and possession of thaman and muthman in electronic contracts are examined from the perspective of Imamiyyah jurisprudence, Iranian law, and international instruments. The findings reveal that, according to Imamiyyah jurisprudence, taking possession of the thaman is a binding obligation stemming from the requirement of fulfilling the contract, but it is not a condition for the validity of the contract. Consequently, Iranian positive law, following the view of Imamiyyah jurists, considers the payment of the thaman in electronic contracts as an obligation upon the buyer, which can be fulfilled through electronic means. Moreover, based on both jurisprudential and legal perspectives, possession does not necessarily mean the buyer’s physical and tangible seizure of the subject matter, but rather dominion and control over it. Therefore, electronic confirmation of receipt by the buyer, or the issuance of an electronic bill of lading by the seller and its acceptance by the buyer, constitutes valid possession. Hence, physical receipt of the subject matter is not required, and the buyer’s dominion control over it is deemed sufficient.

Keywords

• Delivery
• Possession
• Electronic Contracts
• Thaman
• Muthman
• Imamiyyah Jurisprudence
• Iranian Positive Law

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