Journal of Legal Research

Journal of Legal Research

The Nature of Discharge of an Obligation by a Third Party and Examination of His Possibility of Recourse Against the Obligor

Document Type : Original Article

Author
Hossein Bahrami
Assistant Professor, Department of Islamic Jurisprudence and Law, Faculty of Humanities, Bozorgmehr University of Qaenat, Qaenat, Iran.
10.48300/jlr.2024.460167.2660
Abstract
Legislation in some cases permits a third party to discharge an obligation owed by another. This act can occur without the consent of either the obligor or the obligee, with the consent of one party, or with the agreement of both. The legal nature of these differing scenarios is a subject of debate, and its characterization, distinguishing between a legal act and a legal event, is essential, as it directly affects the third party's possibility of recourse against the original obligor. The findings of this research assert the following: (1) When a third party performs the debt without the consent of the obligor or obligee, the act's nature does not differ from performance by the obligor himself. If the payment was compelled to avert harm, and the third party is so authorized by law (ma’zun), recourse against the debtor is permitted based on personal recourse (raj’uat-e shakhsi); (2) When discharge occurs with the obligor's agreement (conditional on recourse), its nature is likewise equivalent to the debtor's own performance, establishing a loan contract (‘aqd-e qarz) as the basis for recourse; (3) When discharge is made with the obligee's consent, the agreement may be structured as novation (tabdil-e ta’ahhod) or suretyship (dheman). If concluded with the debtor's permission, recourse against him is available; and (4) When discharge is with the consent of both parties, the transaction constitutes an assignment of debt (havāleh). Since the transferee (mohāl ‘alayh) is typically already indebted to the transferor (mohīl), the issue of separate recourse generally does not arise.
Keywords
Discharge of Obligation
Third Party
Another&‌‌rsquo
s Debt (Dayn-e Gheyr)
Recourse
Lack of Authorization
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Journal of Legal Research
Volume 24, Issue 64
Winter 2026
Pages 337-364