1
Assistant Professor of Literature and Humanities Faculty, Law Departmetn, University of Guilan
2
PhD student of Private Law, Qom MofidUni
Abstract
In The Romano-Germanic Legal System, according to consideration of the obligation between two people, it was believed that the obligor’s death extinguishes the obligation. After a time, depending on non-philosophical rationalism and with the help of subrogation theory, the problem was solved. This result was followed by Civil Cod. This article answers this question that if obligation extinguishes after the obligor’s death in jurisprudence view? On the Shia jurisprudence foundation, considering subrogation theory, can we say that obligation continues after the obligor’s death? It depends on considering the nature of obligation and also feasibility of the container of duty continuance after death. Obligation is not the constructional relationship between obligee and goods, but it is the constructional relationship between two people. The distinguishing standard is important. As the result of obligation, duty is for obligor and the right of demanding is for the obligee. According to the rules, by obligor’s death, the duty and also the container of the duty extinguish and it is impossible to transfer it to the heirs or take them as subrogates. The most of the legal relationships are possessory in jurisprudence and Shia jurisprudents did not use the theory of subrogation.
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