Document Type : Scientific Research
Authors
Abstract
This article is an effort to study influence and function of capacity on tortious liability with juristic approach and to utilize results of this study to amend the law. The main issue is whether capacity influences on tortious liability or not? It seems although the primary purpose of the jurisprudence is compensation; but it seems there is another purpose to acquit from civil liability of absolute incapacitated persons (insane and non-perceptive minors) as far as possible, because jurisprudents believe to obligate incapacitated persons is not fair; but they are forced to choose between necessity of compensation or incapacity resulting loss. Therefore, jurisprudents believe that incapacitated persons are innocent as far as possible, but they considered responsible in other cases. The civil law that has been adopted from jurisprudence has accepted the same approach.
Although social imperatives and justice require compensating every loss, it must be accepted absolute incapacitated persons are liable for damages in some cases, despite their circumstance. Therefore, we can spread fair treatment in connection with these special people by utilizing potential of legal and judicial principles, existence of social security institutions, and the possibility of transmission and distribution result of loss like insurance for minor and insanecivil liability etc.
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