European Journal of Social Sciences Studies
ISSN: 2501-8590
ISSN-L: 2501-8590
Available on-line at: www.oapub.org/soc
Volume 2 │ Issue 1 │ 2017
doi: 10.5281/zenodo.260289
LEGAL REVIEW OF APPARENT ADVOCACY IN IRANIAN LAWS
Seyedeh Kasan Kazemi1*, Vahid Davarpanah2i
1,2
MA, Criminal Law and Criminology
Abstract:
Apparent advocacy is one of the main components of appearance theory. The
importance of apparent advocacy is evident since lawyering or advocacy has a great
importance along a significant role in facilitation of legal relationships. Individuals can
benefit from lawyering entities in the sense of making personal contracts by using
representatives. Lawyering plays an important role in terms of facilitation of
transactions and contracts. In fact some peoples’ job is to make contracts while
representing other individuals. The rules and regulations of advocacy have been set in
support of individuals in order to make people motivated towards interacting with
lawyers so that this entity is able to play its role in flow of capital and boom of trades. In
other words, the domain of advocacy must take a step further than the sole lawyerclient relationship and instead, its sentences should be redistributed based on
supporting social trust. An interesting solution for creating trust towards lawyers
amongst the public is supporting for legal trust in credible appearance which is
followed by apparent advocacy. This paper elaborates on concept, instances, and
conditions of realization and impacts of apparent advocacy.
Keywords: contract, advocacy, apparent advocacy
1. Introduction
Credibility of actions of a lawyer depends on two things. A person who makes a
contract or undertakes legal actions on behalf of another person will only issue
permissions if he or she has the authority to do so. In fact, a person can only make
contracts on behalf of another person when he or she is authorized for action. In other
words, the client should have obtained legal action authority due to explicit or implicit
permission.
i
Correspondence: email vahid.davarpanah1363@gmail.com
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LEGAL REVIEW OF APPARENT ADVOCACY IN IRANIAN LAWS
Submission of authority is realized through signing an advocacy contract. In this
process, the client provides the advocate with authority for representing him/her for
accomplishment of something. The client sets and specifies the limits of lawyer’s
authority in the advocacy contract. In addition to explicit permissions of the client,
norms evidence and customs are considered as authorizations o lawyers.
Usually clients are not aware of the entire details of advocacy affairs at the time
of submission of authority and therefore, not every specific point is explicitly written in
the contract. Therefore, in addition to the explicit permissions, the lawyer should also
empathically act autonomously in specific situations considering the norms and
benefits of the client while being adhered to the preset limits and permissions allowed
by the client.
If the advocate exceeds the limits set by the client or disregards the benefit of the
client in his/her actions, then the advocate’s actions are ineffective Imami,
.
According to legal principles, if the authority of an action is explicitly or implicitly
delegated to another individual and also the advocate’s actions do not exceed the limits
set by the client, then the client is obliged to adhere to the commitments. Otherwise, the
actions of the lawyer are only considered as curiousness and the client will have no
necessity for adherence to commitments. Still in some cases, it is observed that a person
acts on behalf of another person and the conditions and situations also show that a
lawyer-client relationship exists between the individuals, and then the third person
trusts the representative and signs a contract with him/her. In this case, the third person
considers the representative as a real advocate and signs the contract or facilitates the
legal act. In this case, the type of advocacy is named as apparent advocacy which is
performed by an apparent advocate who is not a legally authorized person.
In apparent advocacy, individuals put legitimate trust in apparent situations,
consider a person as the real advocate of another person, and then contract with
him/her. Here the question that rises is that if the third person with good will is worthy
of support? Or shouldn’t there be any support for transaction safety and security, speed
of commercial transactions and respect for individuals’ legitimate trust?
In apparent advocacy, two conflicting benefits are confronted with each other.
On the one hand, there are client’s benefits. In this case, the apparent client has not
legitimately delegated anyone. Therefore, the representative or the apparent advocate
acts on behalf of the client while exceeding the limits that could have had been set by
the client. In addition, the apparent advocate considers him or herself obliged for
adherence to commitments which he/she doesn’t approve. On the other hand, there are
the benefits of the third person who has put a legitimate trust in apparent status of the
contract. Apparent advocacy removes this conflict of benefits. It also officially
recognizes necessities such as transaction safety, maintenance of public trust and
facilitation of capital flow. In this regard, not unlike the real type of advocacy, apparent
advocacy also creates commitment for people. By an apparent advocacy, the
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hypothetical client is also obliged to adhere to his/her commitments in return for the
actions of the apparent advocate. The apparent advocate is removed from the
relationship between sides of the contract and the hypothetical client should accomplish
his/her part of the contract signed between him/her and the unauthorized person or
client who has exceeded the authorization limits (Malaurie, 1988).
1.1 Apparent advocacy in Iranian Laws
The concept and effects of apparent advocacy are in conflict with legal rules and
principles in the sense that the apparent advocate is obliged to commit an action for
which no permission was delegated to him/her by the client. But still, the concept of
apparent advocacy remains still in Iranian Laws. The present paper is aimed at
reviewing the apparent advocacy in laws and jurisprudence.
1.2 Apparent advocacy in jurisprudence
This type o advocacy is approved for signing contracts and the lawyer and client can
both terminate it at their will. After termination, the advocate or the lawyer is no longer
allowed or permitted to perform any advocacy. The instance of apparent advocacy in
jurisprudence is attendance to advocacy after being dismissed. In terms of
jurisprudence, there are certain disagreements regarding manner of dismissal of the
client and effects of the former. There are also different theories stated in this context.
According to the view held by most jurists, although that the effects of dismissal are not
dependent on declaration of dismissal to the other side, but dissimilar to these
conventions, the advocacy is only terminated upon declaration of dismissal to the
lawyer (Shahid Saani, 1402 A.H).
On this basis, prior to being made aware of dismissal, the lawyer is approved to
continue his advocacy since advocacy is only terminated through declaration of the
word of dismissal to the lawyer. As an example, the word sent by Imam Sadeq to
Hasham-Ibn-e-Salem is referred to: in this narrative, Hasham asks Imam a question
regarding a person who hired an advocate for signing two contracts with presence of
two witnesses. After that the lawyer had left the client, the client said in public that be
aware and be witness that I dismissed him of his advocacy. It was questioned that what
is the sentence of the action that was done prior to being dismissed? In return, Imam
Sadeq answered: if the advocate does the action before being dismissed, whether the
client is satisfied or not, the action is ineffective. Then it was questioned that what if the
lawyer had done the action prior to being notified of dismissal? In this case, Imam
Sadeq answered: if the lawyer follows up the task after being authorized, the
effectiveness of his actions remain until the delivery of the word of dismissal.
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According to this narrative, it can be concluded that advocacy continues until the
delivery of the word of dismissal to the advocate. Also the actions of the lawyer are not
considered as ineffective since the realization of dismissal depends on deliverance of
the word of dismissal to the lawyer or advocate. In this theory, there is difference
between termination of advocacy and termination of permissible contracts. In terms of
permissible contracts, termination is realized upon will and awareness of the other side
of the contract about this will has no effect. In contrast, termination of advocacy
significantly depends on deliverance of the word of termination or dismissal to the
lawyer. Jurists have also made reference to rational reasoning in terms of continuality of
advocacy until deliverance of dismissal word:
a) The appearance of the situation of signing the advocacy contract confirms the
legitimacy of advocacy until deliverance of dismissal word. In this regard, it has
been described that when a person becomes an advocate for performance of an
action on behalf of another person, the appearance signifies the continuity of
advocacy and this appearance continues until deliverance of dismissal word to
the lawyer. After that, the word of dismissal was delivered to the lawyer, the
appearance breaks and advocacy contract is terminated.
b) Avoiding damage implies the continuality of advocacy until deliverance of
dismissal word. This is because if the termination of the advocacy contract is
accepted prior to deliverance of the word of dismissal, then damages or harms
may be done to the lawyer or third parties. Therefore, this principle implies that
actions of the lawyer are considered as effective until deliverance of the word of
dismissal.
c) Based on order for doing a task and prohibition of doing so, continuity of
advocacy upon deliverance of the word of dismissal is justified. In this regard it
has been described that while signing an advocacy contract, the client orders the
advocate to do something and therefore, the advocate is tasked with some
specific action. Termination of this advocacy contract means that the lawyer is
prohibited to do that work and this prohibition is only effective when the lawyer
is made aware of the will of the client. Therefore prohibiting the advocate from
an action without making him/her aware of his/her dismissal is not credible.
Considering this content, the advocacy continues until the deliverance of the
word of dismissal to the lawyer or advocate (Sheikh Toosi, 1401 A.H).
2. Apparent advocacy in Iranian laws
The following is dedicated to interpretation and explanation of the article 680 of the
civil law and contrasting it with apparent advocacy
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2.1 Article 680 of the civil law
Permissible contracts are disappeared with termination and therefore, no requirement
remains for the sides of the contract. Termination of contract is completely changed in
the article 680 of the civil law. In this article, it has been stated that the entire actions of
the lawyer towards his client are considered as effective until deliverance of the word of
dismissal. Considering these content, one may need to recognize the basis of this
exceptional sentence.
Some people believe that this article is inspired from the famous code of Islamic
jurisprudence which is documented in narratives about Imams and prophets. This
article is not considered for in any other context than advocacy. In addition, signing an
advocacy contract does not have any feature that requires the former. Yet no other basis
can be proposed for it (Imami, 1999).
There are also some people who believe that the article 680 of the civil law has no
juridical history and that it is inspired from the article 2008 of the French civil laws.
Therefore in order to interpret this article, one must refer to French civil laws (Amiri,
1988). This theory is not correct since this article can be found in sentences issued by
Islamic Imams. On the other hand, the criterion in French civil law’s article
is
awareness or unawareness of third parties regarding dismissal of advocacy. Therefore,
in our civil law, the criterion is effectiveness of actions of the lawyer and deliverance of
the dismissal word to the lawyer. In addition, the article 2008 of the French civil law has
also considered for death of the lawyer along with his/her dismissal. The article 2008 of
the French civil law implies that is the advocate was unaware of death of the client or
his/her will for dismissing the advocate, what the advocate does during this period of
unawareness is considered as effective.
Some people consider the basis of this article as maintaining the security of legal
transactions. The entity of apparent advocacy relieves the personal relationships of
people from insecurity. However, the client might question the credibility of the actions
of the advocate after dismissal but before declaration; in this case it should be
mentioned that the entire actions of the advocate prior to being notified of his/her
dismissal are considered effective and authentic.
The basis of the article 680 of Iranian civil law must be considered as avoidance
of damage and harm. By giving permission to the advocate, the client creates an
apparent legitimate situation in which it is conventional to act. If termination of this
apparent situation is in only in hands and upon will of the client, then the advocate may
be still continuing working with third parties prior to being notified. This could harm
the lawyer or even the third parties involved. In this regard, a sense of instability and
insecurity is developed in legal relationships. Therefore, the legislator has considered
the benefits of the lawyer and third parties and in order to avoid harms, the
righteousness of actions of the lawyer are maintained until deliverance of word of
dismissal to the lawyer (Langroodi, 2011).
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Jurists consider the reason of existence of this article as special situations and
therefore do not extend this article’s sentence to death or insanity of the client. Some
people consider the reason for existence of this article as avoiding occurrence of harm
for the advocate. They believe that dismissing the advocate without notifying him/her
may cause harms to the advocate. For example if the advocate sold a third party some
edible product on behalf of his/her client and the client had consumed the product, the
contract is considered as effective and appealing since the advocate was not aware of
being dismissed by the client. Therefore, in order to avoid any harm or damage on the
advocate or the third party, legislators have specified the article 680 of Iranian civil law.
However, in addition to the article itself, we must know the source of its adaption as
well.
Some people believe that this article is adapted from Imams’ jurisprudence. This
article is inspired from the famous code of Islamic jurisprudence which is documented
in narratives about Imams and prophets. The legislator of Iran has also considered this
fact and has stated that according to article 6 of Iranian civil law, the advocate’s
actions are considered effective until the deliverance of his/her dismissal word. In
contrast to other contracts, the advocacy contract is only terminated upon notifying the
advocate of his/her dismissal. Therefore, by taking a look at the appearance of the
article 680 of Iranian civil law, it can be made clear that advocacy contract is terminated
by dismissal of the advocate. However, considering an exceptional rule, the actions of
the lawyer remain effective until he or she is made aware about being dismissed
(Katoozian, 2006). Some other people also believe that this article is adapted from the
article 2008 of the French civil law and that this article has no juridical history. This
claim in incorrect and there are certainly specific instances in religious jurisprudence. In
addition, the French civil law’s article
has considered for decease and death of the
client and that the basis of the article is unawareness of the third party about dismissal.
Therefore, it can be concluded that the article 680 of Iranian civil law is not adapted
from article 2008 of the French civil law. However, it also seems that legislators have
neither adapted this article from jurisprudence nor adapted the article 2008 of French
civil law. Rather the legislator has combined both of the aforementioned sources and
crated an independent establishment. By this article, the task of a lawyer is terminated
upon dismissing him, however in order to avoid any harm on the lawyer or third
parties, the actions performed by the lawyer remain effective as long as the word of
dismissal is not delivered upon the advocate. As soon as the advocate is made aware of
being dismissed, his/her actions afterwards are considered as ineffective. Since this
article has not mentioned the death of client it is similar to jurisprudence and also since
it has specified that the actions of the lawyer remain effective until deliverance of the
word of dismissal, it is similar to the article 2008 of French civil law.
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2.2 Comparing and contrasting the article 680 with apparent advocacy
Apparent advocacy is realized when third parties put trust in apparent situations and
mistakenly consider someone as another one’s advocate and sign a contract with him.
In Iranian law, the criterion for realization of apparent advocacy is awareness or lack of
awareness of the advocate regarding his/her dismissal. In addition, the entire actions of
the advocate prior to being notified about dismissal are considered as effective.
However, in French laws, the criterion is not awareness of the advocate about his/her
dismissal. Rather the criterion is the third party’s awareness about dismissal of the
advocate. According to article 2003 of French civil laws, the client can terminate an
advocacy contract and by doing so, the act of advocacy is finished. But if there are third
party individuals who have signed a contract with the advocate without being aware of
the fact that he/she was dismissed, then the client is obliged to act to his/her
commitments made to the third party individuals. In this regard, the article 2005 of
French civil law implies that: a termination which has only been made aware to the
advocate cannot be made reference to in terms of people who had made a contract with
the advocate while they were unaware of his/her dismissal.
According to views and ideas held by jurists, in order to avoid any harm and
damage to the advocate or third person, the advocacy and entire actions of the advocate
remain effective until he or she is made aware of being dismissed. However the
advocacy remains in effect as long as the advocate is unaware of the client’s decision
regarding dismissing him/her.
3. Conclusions
First of all it should be considered that advocacy is a type of contract at it needs both
sides’ agreement. The second point to be considered is that not only that the client can
dismiss the advocate, but also the advocate can resign of the contract too. The third
point is that advocacy is terminated as a result of death of the advocate or client,
resignation of the advocate or dismissal of the advocate by the client. However, still
there are two articles in Iranian civil laws which are in conflict with principles inferred
from advocacy.
One of them is article 680: the entire actions of the advocate prior to being made
aware of dismissal are considered effective.
The other one is article 681: after that the advocate resigned, the client remains
there and that he/she can act as it was mentioned in the advocacy. If one could infer that
the situation is comparable with general terms of contracts, then this advocacy is
considered as permanent and real. However if one concludes that there is an exception,
then the advocacy here is considered as apparent advocacy. In this case, the advocacy is
not real but the civil law considers the advocate authorized for continuing his/her work
based on certain reasons. Another thing to be considered here is that if the news of
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decease or insanity has the same effects or not? It means that if the client dies and before
that his/her death is made aware to the client, would the advocate’s actions be
considered as effective?
Jurists imply that the essence of advocacy is permission and that advocacy is
based on permission. In this regard, the client permits the advocate to do whatever
necessary in the domain of advocacy. In terms of face validity, it is realized through
accomplishment. Therefore, the essence of advocacy is also obligation and acceptance.
On this basis when the advocate resigns, this obligation and acceptance is terminated
but the permission still remains. This inference is rationally disputable. Because
advocacy is not mere permission and that it also specifies tasks for the advocate as well.
Voluntary and autonomic effects are of two types. In one case, the effect of will has
independence such as ownership. When you have sold a property, even if you change
your will you will not be able to take your property back. However there is also some
other autonomic effects which remain in the minds of those who have willed.
Iranian civil law has made adaptions from the French civil law and state that the
advocate should be made aware of the decision of client regarding his/her dismissal.
The basis is dependence on respect for legitimate trust which is obliged for the court or
lawyer. Here a question may rise: what should be interpreted from the case in which
the actions of the lawyer were effective but the court regarded them as ineffective? In
this case, there must be an agreement which has been set aside from the official
documents. This agreement is brought to the court but since the lawyer was unaware of
it, then his/her actions would be considered as effective. Whether the court was aware
of the issue related to the trial or the advocate was aware of that issue, in any case there
would be enough evidence regarding ineffectiveness of the action that has been
undertaken regarding advocacy.
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5. Langroodi Jafari, MJ. (1996). civil rights, rights, obligations, Tehran, Tehran
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LEGAL REVIEW OF APPARENT ADVOCACY IN IRANIAN LAWS
6. Malaurie, p. (1988). ET Aynes, le cours de droit civil, les contrast speciux, 2e ed,
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