The Nature and Credibility of Advisory Opinion in Estimating Each Party’s Fault Amount in Civil Liabilities
Mohammad ADIBY MEHR1*, Hosein MOHAMMADI BONCHENARI2, Ali JAFARI3, Mohammad Rasool AHANGARAN4, Seyyed Abdorrahim HOSSEINI5
1 Associate Professor, Department of Islamic Jurisprudence, Farabi Campus University of Tehran, Iran.
2 Ph.D. Student, Department of Islamic Jurisprudence, Farabi Campus University of Tehran, Iran
3 Assistant Professor, Department of Islamic Jurisprudence, Farabi Campus University of Tehran, Iran.
4 Professor, Department of Islamic Jurisprudence, Farabi Campus University of Tehran, Iran.
5 Associate Professor, Department of Islamic Jurisprudence, Farabi Campus University of Tehran, Iran.
* Corresponding Author:
Email: madiby @ ut.ac.ir
ABSTRACT
Though having been accepted, the formal documents presented in Iran’s civil law, like a confession, testimony, and oath, feature limitations, especially now that they cannot be expected in the specialized, technical, and complicated issues to remain accountable to all aspects of a legal matter. In the lawsuits filed for demanding of loss compensation and in civil liability cases, the judges issue a writ of advisory opinion and refer the case to the experts of each specialized field for the recognition of the issue, calculation , and estimation of the guilt rate of each party (liable and loss-incurred). The experts investigate the case and determine the amount and percentage of each party’s fault. As for the nature of advisory opinion, there are discrepancies. A group of jurisprudents realize advisory opinion as being of a testimonial nature and believe that the testimony conditions, i.e. numerosity and justice, should be existent for the advisory notion to be valid whereas another group underlines its independent nature and finds certainty sufficient for the validity of the advisory notion. In the judicial procedure, the advisory notion is considered valid to the extent that the amount of compensation payable by the liable party is specified based thereon hence the expert’s idea can be enumerated amongst the other proofs of claim justification as an independent justificatory proof and it might be even considered superior thereto. The present study made use of an analytical-descriptive method to evaluate and analyze the nature and validity of the advisory note against the other proofs of claim justification.
Keywords: Advisory, Justificatory proof, Guilt estimation, Civil liability
INTRODUCTION
For convicting a liable to the compensation of a loss of a type, the guiltiness amount of each of the loss-incurred and the liable parties should be seminally determined because in many cases the loss-incurred, as well, falls short of observing the principles and regulations and an amount of the harmful action’s performance or useful action’s non-performance can be attributed to him or her. Nowadays, human beings should observe most of the safety issues considering the progress in the science and industrialization of the ordinary and daily life affairs, otherwise, they would put themselves at risk; so, it is far from justness if the carelessness of the loss-incurred person is ignored and the liable party is sentenced to the payment of all the imposed loss.
The nature of the advisory opinion and its position are amongst the jurists’ controversial issues. The discrepancies have been intensified with the non-mentioning of the advisory opinion amongst the proofs of claim justification in the civil law and its prediction in the civil trial procedures along with the other proofs. No explicitness is seen in the regulations regarding the position and nature of advisory opinion.
The recognition of the nature of advisory opinion, the validity proofs and conditions of the expert’s idea, and its amount of validity in the discussions on civil liability find more importance when the experts’ ideas are found contradictory to the other proofs of claim justification that have been apparently and exclusively counted in the civil law. What should the judges do in such cases? Should they adopt a traditional look at the well-known proofs and prefer them to the experts’ ideas and/or an advisory opinion by a specialist be considered superior to such proofs as confession and/or testimony?
Civil Liability
Liable is the person against whom a claim has been made (Ma’aluf, 2005). The liability is posited when the imposition of loss can be attributed to a person. In other words, filing of a liability case entails the possibility of ascribing a loss of a type to a person who should be subsequently found having caused it. In this case, the compensation of loss and payment of loss are demanded from the loss instigator.
Guilt is the most primary reason for liability in such a way that two of its examples, excess and deficiency, have been repeatedly talked about in the jurisprudential and legal texts (Taheri, 1998, v.2, p.281). The term “guilt” means falling short of something or exercising carelessness in doing something. Article 951 of Iran’s civil law has the following definition of the term “abuse”: “abuse means exceeding the permissible or common limits in respect to the others’ properties or rights”. The abuse mentioned in this article is a general title that is accompanied by the performance of positive action and causes another person to be incurred with a loss of a type. In article 952 of the civil law, it is stated that “deficiency includes non-performance of an action that is required to be done by the force of a contract or a norm for the protection of another person’s properties”. Therefore, the guilt of the non-performance type is termed deficiency.
Claim Justification Proofs
Proof has been interpreted as a meaning guide and guiding (Dehkhoda, 2006; Ma’aluf, 2005). Iran’s civil trial procedure stated, in article 194, that “proof is the instrument used by the lawsuit’s parties for justifying a case or defending a claim”.
The claim justification proofs that deal with the justification of the lawsuit’s subject are amongst the set of tools used for the justification of the lawsuit’s subject in the judicial authorities. Iran’s civil law stated, in article 1258 without offering any definition of the claim justification proof, that “the claim justification proofs are “1) confession; 2) written documents; 3) testimony; 4) indisputable circumstantial evidence; and 5) oath”. The contents of this article have caused the proposition of the question that “Should the justificatory proofs’ system in Iran’s laws be considered as the legal proof system or the free proof system?”
In the legal proofs’ system, the legislator has predicted the proofs of the claim justification exclusively and a person can only make use of them for proving his or her claims. Moreover, the justification power and value of the legal proofs have been previously specified and determined by the legislator, and the judge has no right to assign a certain value to them.
In the free proofs’ system, the proofs are not exclusively recounted in the law rather any material that can justify the intended issue can be used as proof. The justificatory value of these proofs is within the judge’s evaluation scope and based on the certainty they give to the judge (Shams, 2015, v. 3, p. 85; Katouziyan, 2006, v. 1, p. 25).
In Iran’s civil law, the claim justification proofs have not been enumerated in the law and this is a property of the legal proofs’ system (Shams, 2015, v. 3, p. 86). However, it seems that the claim justification proofs in Iran’s laws are composed of the legal proofs’ system and free proofs’ system. In Iran’s laws, the justificatory value of some of the proofs is evaluated and assessed by a judge and this is an attribute of the free proofs’ system. Thus, the claim justification proofs’ system in Iran should be envisioned as a mixed system (Amravani, 2011, p. 13).
THE NATURE OF ADVISORY OPINION:
Surely, a judge cannot be expected to be familiar with all of the sciences, techniques, and expertise so that he can make use of his knowledge and expertise in resolving the discrepancies. Therefore, the judges refer the cases to the advisory professionals, if necessary, so that their sentences can be more adjusted to the reality and they can also satisfy their conscience (Katouziyan, 2006, v. 2, p.110). However, there is no independent discussion specifically dedicated to the subject “referral of the case to advisory expertise” in the jurisprudential texts and various notions can be sporadically found regarding the referral to the experts in the various jurisprudential discussions and topics of the science of principles.
Discussion about the advisory opinion is rather new in jurisprudence and law and the jurisprudents have been from the beginning looking for justifying the reason and nature of referral of the lawsuit’s recognition to an expert and also for figuring out whether any person other than the judge and the lawsuit parties, without having witnessed an event, can express ideas about it or not?
To clarify the discussion about the nature of advisory opinion, it is necessary to first compare the advisory opinion with such institutions as testimony and inspection of the place.
Advisory Opinion and Testimony
It has been stated that the idea that advisory opinion is a sort of testimony, is rooted in Rome’s laws (Zera’at, 2009, p. 361). Advisory opinion and testimony are similar in that the witness makes a conclusion and provides information based on what s/he sees, hears, or feels. Expert, as well, receives a scattered group of signs and evidence and reflections and concludes investigation of them. The difference is that the witness’s conclusion is very much normative and easily understandable and simple but the expert’s inference takes a longer course and is accompanied by reasoning, hence featuring a greater deal of effectuality.
But, the divergence aspects of the advisory opinion and testimony outnumber their convergence dimensions. In advisory opinions, the case is referred to an expert for the offering of a technical idea regarding the issues, the recognition of which needs knowledge and expertise and the expert performs the required investigations to come up with an opinion and inference. However, in bringing testimony to a claimed case, one of the parties requests the presence of an individual who has perceived the claimed subject with his or her apparent senses like eyes and ears and has gained insight about it so that s/he can retell what s/he has seen or heard in the court. Therefore, in testimony, the issue is not specialized and the witness opines his or her notions based on his or her observations and expresses what s/he has comprehended and is certain about in the court (Matin Daftari, 1969, p. 378). The other difference is that the expert has not been present at the time of the claimed incident’s occurrence rather s/he analyzes and concludes based on the documents and proofs s/he is provided but the witness has been present during the event and has perceived it with his or her senses. It is due to the same reason that the court can take measures parallel to the substitution of the expert, if necessary; but, the witness is the person who has been present in the accident’s occurrence location hence no person other than him or her can be selected as the witness (Matin Daftari, 1969, p. 380).
Furthermore, the expert is specified by the judge to investigate a specialized case referred to him or her based on the court’s order and opines his or her specialized idea. S/he is obliged to perform specialized evaluations and come up with an advisory opinion. But, a witness is not specified by the court rather s/he is a person who has naturally happened to be present in the accident scene and will be asked to attend the court after the lawsuit was adjudicated (Matin Daftari, 1969, p. 148).
In Iran’s statutory provisions, since advisory opinion has been put forth apart from the testimony in the civil trial procedures and, additionally, the witnesses’ qualifications have not been realized necessary for the expert, considering advisory opinion as equal to testimony or a sort of testimony does not seem so much justified hence the expert cannot be viewed as the testifier. The majority of the jurists believe in the difference between the advisory opinion and testimony’s natures (Langarudi, 2002, v. 2, p. 1003).
Advisory Opinion and Examination of the Place
Iran’s civil trial procedures enumerate scene inspection amongst the means of claim justification and article 255 of the aforesaid law realizes the information obtained from this legal entity as being amongst the judicial evidence.
Scene inspection includes the judge or a court-trusted individual’s presence in the intended place and reflecting of the gathered evidence in a minute (Mohajeri, 2008, p. 226). There are similarities between the scene inspection and expertise and it might even strike the mind that an expert is a person trusted by the court and assigned to the scene inspection.
Using a little scrutiny, it becomes clear that the measures taken by an expert do not merely incorporate scene inspection and offering reports of the observations to the court, rather the expert asserts his or her notions based on the collection of his or her scientific observations and knowledge and the things s/he offers to the judge constitute a specialized theory that is endeavored to be expressed in a language maximally understandable by the court and the lawsuit parties. The expert’s opinion differs from a minute of the scene inspection that solely reports and explicates the current status.
Due to the complexity of the recognition in some of the files, there are cases seen in the jurists’ notions that expert’s opinion has been accepted in some of the affairs as an independent title (Hosseini Nejad, 1995, p. 118). This attitude also is not far from reality. Such a proof as testimony which guides as a special and decisive mental proof directly towards the reality seems to be stronger and more assuring as compared to the expert opinion that navigates towards the reality based on the investigation of the situations and statuses but no result is sure and concrete. The scientific and industrial progress has indeed opened roads that could not be even imagined before. Therefore, the advisory opinion should be enumerated amongst the proofs of justification (Katouziyan, 2003, p. 317).
The importance of referral to advisory opinion in technical and specialized subjects is so high that the plea’s invalidation likelihood has been predicted if the expert could not reach a decisive conclusion. Article 259 of the civil trial procedures stipulate that “… when the court issues a writ for an advisory opinion and it is found incapable of issuing a sentence without asking for an advisory opinion, payment of the expert’s wage is the duty of the plaintiff in the initial court and the duty of the appealer in the appeal stage …”.
The validity of the expert’s opinion and the idea that it has to be utilized as the base of action is vividly inferred from the opposite concept of article 265 of the same law. “In case that the expert’s opinion is found not matching with the sure and actualized statuses and situations of the evaluated case, the court would consider it as being devoid of any effect” meaning that if the expert’s opinion is found conforming to the well-known and sure situations and statuses of the evaluated case, the court will put it into practice.
It seems that the fact that the advisory opinion has not been mentioned amongst the legal proofs has been due to the lack of awareness about the substantive aspect of the advisory opinion and it's not being mentioned at the side of the document, testimony, and confession should not be taken as meaning its lesser validity. The civil law’s silence regarding the advisory opinion lacks logic for such a reason as the Iranian legislator’s imitation of France’s civil law and it has been inserted to the verdicts on proofs with no justified reason (Matin Daftari, 1969, p. 245).
REASONS FOR THE VALIDITY OF THE EXPERT’S OPINION
Referral to an expert dates back to long ago in history. Human beings reference to others for what they do not know and this intrinsic way of conduct has also been confirmed in the religions’ teachings. The ĀYA of question that is considered as one of the proofs justifying the referral to an expert has been mentioned in two SŪRAHs of the holy Quran:
Since the fellows and specialists of every issue are more aware and knowledgeable about it, the individuals who want to acquire information about a subject should refer to its experts (Tabataba’ei, 1995, v. 12, p. 375). Of course, it has to be noted that the thing that has been mentioned in the Shiites’ interpretations and described Shiite Imams as the “Ahl Al-Zikr” [fellows of reminding] do not cause any flaw in reasoning based on this honorable ĀYA because the ĀYA’s revelation for a specific case does not cause its sole dedication to the same specific topic and the exclusivity of its intention and signification (Khou’ei, 1997, v. 2, p. 539).
Referral to the experts can also be seen in the prophet’s way of conduct. As an example, in the following narration, the great apostle of Islam (may Allah bestow him and his sacred progeny the best of His regards) commissions Abdullah Ibn Ravaheh to the determination of prices for crops:
“Ali Ibn Ibrahim An Abih An Ibn Abi Amir An Hamad An Al—Halabi Qāl Okhberni Abu Abdullah (Alayh Al-Salam) Enna Abah (Alayh Al-Salam) Hadathahū An Rasūl Allah Alayhe Wa Alehi E’etā Khaibar Bi Al-Nesf Arzehā wa Nakhlehā Fa Lammā Adrakat Al-Thamareh Ba’atha Abdullah Ibn Ravaheh Fa Qūm Alayhem Qaimah Fa Qāl Lahom Emma An Ta’akhozūho wa Ta’atūni Nisfa Al-Thaman Wa Emma An A’atikom Nisfa Al-Thaman Wa Ākhezohū Fa Qalū Bi Hāzā Qāmat Al-Samāvā wa Al-Arz” (Kolaini, 1987, v. 5, p. 266; Ameli, 1989, v. 18, p. 232).
The most important reason that has been stated for the validity of the expert’s opinion is the intellectuals’ way of conduct. The phrase “way of conduct” literally means the practices and methods. Commonly, the aforesaid phrase means the continuation of a practical method and style for performing something or leaving something undone and the intellectuals’ ways of conduct include the intellectuals’ continual practicing of a method (Alidust, 2009, p. 122).
In all of its aspects and affairs and during all times and periods, the intellectuals’ way of conduct is that reference is made to the knowledgeable and informed individuals when a subject is ignorant such as referral to an expert who is aware of the prices. The notable point is that the way of conduct is not solely devoted to the acquisition of certitude based on an expert’s opinion rather intellectuals also trust it even when certitude cannot be achieved based thereon and try exercising it (Sadr, 2000, p. 82).
Another important point is that the validity of the intellectuals’ way of conduct does not need religion’s confirmation because the mere absence of its prohibition means the religion’s affirmation thereof even with the possibility of its prohibition and the religion’s non-denial of it indicates the canon’s affirmation of this intellectual method (Sadr, 1997, v. 4, p. 14; Ha’eri Yazdi, v. 2, p. 37; Hakim, 1988, v. 2, p. 95).
The intellectuals’ referral to the experts is laid on the foundation that the experts do not make mistakes in issues referred to them due to their expertise hence they make accurate assertions and the specialized opinion’s contradiction of the reality and the experts’ making mistake in technical and specialized issues occur but very rarely in such a way that the intellectuals ignore this amount of mistake possibility.
Referral to an expert is in the form of an ignorant person’s referral to a knowledgeable person and it is an intellectual method and the expert’s opinion is exercised if the expert is reliable and if his opinion is convincing, hence there would be no need for the possession of the testimony qualifications (Khou’ei, 1990, v. 2, p. 41).
ISSUANCE OF A WRIT OF ADVISORY OPINION IN THE LOSS COMPENSATION CLAIMS
In loss compensation lawsuits, each of the loss causes and the loss-incurred party’s amount of guilt should be specified because, in many of the cases, the thing that has occurred in the outside world cannot be one hundred percent attributed to the liable and the loss-incurred person’s carelessness also plays a role so the payment of all the loss cannot be imposed on the liable party. The amount of each party’s guilt should be precisely determined by the means of a persuasive proof and it has to be written by the judge at the time of sentence issuance in a clear-cut manner in the court’s ordinance paper.
When the occurrence of an incident is attributed to both of the parties, what scale and criterion can be used for apportioning it between the two parties? What justificatory proof can be used to prove the extent to which each party has been guilty in the emergence of the harmful accident? It can be stated that the guilty is the person who is found blameful by the “mores” because guilt is amongst the cases accepted by the traditional customs’ arbitration (Musavi Khomeini, 2001, v. 2, p. 566; Ameli, 1994, v. 2, p. 245). However, it has to be noted that mores are not currently accountable in specialized affairs to all the aspects of a legal issue and only an expert can assert notions regarding the attribution of guilt to individuals.
If the liable person undertakes all the guilt through confession, the judge issues a sentence convicting him or her to avoid prolongation of the trial process and sentences him or her to the loss compensation. In this case, the liable person’s confession becomes the sole means of the resolution of the dispute, not the justification of the subject and this causes the conviction of a person but not in real terms rather based on the issued sentence which would subsequently oblige him or her to compensate the claimed losses of the harmed party. But, this procedure is not definite and there are cases of the liable person’s confession that are referred to the advisory opinion of an expert. “Although the car driver accepts his or her guilt in terms of the injuries s/he has imposed on the motorcycle-rider, it is better, considering the non-reversibility of the crime, to acquire the expert’s idea due to the technical nature of the case in regard of both verification of the violation and the limits of the guilt and also in regard of the type of the imposed injuries which is the duty of forensic medicine” (notion number 71/7244 at 01/12/2005). In this theory, even with the culprit’s confession to the guilt, acquisition of the forensic medicine’s idea has been opined to be necessary. In the vehicles and ships accident cases, as well, forensic medicine and police reports are obtained (Bodaqi, 2014, p. 158).
If the loss imposition factor denies the attribution of all the action or non-performance of harmful action to oneself and the person who has been imposed with loss introduces a witness for justifying his or her claim, sufficiency to and trusting in testimony as a justificatory instrument is not a sure way for achieving reality and justice, especially in technical and specialized affairs. A non-specialized witness can only express his or her sensory observations in the court but can s/he state how much has the loss-incurred party been careless and how much s/he has neglected the safety principles and regulations? Such testimony is logically not known as ensuring. The testimony by a witness who testifies without any specialty and out of unawareness regarding a specialized affair does not provide authenticity and sureness and cannot be a good substantiation for the court. Even an experienced judge who has happened to be present in an accident’s venue and has been in person witnessing the event with his or her senses from a close distance cannot determine how much of the action’s performance or the harmful action’s non-performance can be ascribed to the liable party and how much negligence has been exercised by the loss-incurred person?
It is here that the science and expertise come to assist justice and it is the expert that recognizes and determines how much have each of the parties caused the creation of the accident. In this case, the expert’s theory is surely in a rank higher than testimony as a justificatory proof hence being given superiority over it. Advisory opinion forms the basis of action unless the expert’s idea is found mismatching with the sure and actualized situations and statuses. Even in this case, the judge usually does not avoid issuing a writ for the acquisition of advisory idea and, declaring the whereabouts to the expert, asks for more explanation and/or supplementary ideas from him or her and/or the subject’s recognition is assigned to an expert group.
CONCLUSION
Referral to an expert is an intellectual method that has also been confirmed in Islam and the referral to an expert is also seen in the great apostle of Islam (may Allah bestow him and his sacred progeny the best of His regards)’s a way of conduct. Due to his or her expertise, the expert usually does not make a mistake in the issues referred to him or her and asserts correct ideas. The experts barely make mistakes and the intellectuals ignore this amount of mistake likelihood. Many of the jurists explicitly describe advisory opinion as robust and independent justificatory proof. The fact that the advisory opinion has not been mentioned amongst the claim justification proofs in Iran’s civil laws, as well, does not diminish the credibility of this efficient and intellectual construct rather the non-mentioning of advisory opinion as an independent proof in Iran’s civil laws is an important shortcoming in the aforesaid law.
To require a liable person to the loss compensation, the amount of his or her guilt should be seminally determined because an amount of the action’s performance and harmful action’s non-performance can be in many of the cases attributed to the loss-incurred person. The liable person’s confession to the losses, the compensation of which has been demanded by the plaintiff, might resolve the dispute, and the liable party can be consequently sentenced to the payment of the same amount of loss compensation; however, there are important and complicated cases wherein sufficiency cannot be made in confession and the expert’s ideas should be also taken into account. Introducing a witness by the plaintiff cannot provide the judge with confidence and conscience satisfaction because the testimony has to be made out of awareness and the non-specialized witness’s claim is not based on knowledge and awareness regarding the amount and percentage of guilt and amount of negligence hence not having so much value and effect. Advisory opinion can provide the judicial authority with more sureness and conscience satisfaction more than testimony and the expert’s idea can alone form the judge’s basis of substantiation for issuing a sentence. In discussions about civil liability and for determining the liable person and the loss-incurred person’s amount of guilt, advisory opinion is in a superior and higher rank to testimony.
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