تحلیلی بر ماهیت روابط بانک، مشتری و ارائه کننده خدماتِ کارت های بدهی در حقوق ایران، عراق و الجزایر (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
با ظهور پول الکترونیکی و رواج کارت های اعتباری، ماهیت های حقوقی جدیدی پا به عرصه وجود گذاشتند. از میان اقسام مختلف کارت های اعتباری، امروزه کارت های بدهی به منظور شیوع بیشتر، اهمیتی زائدالوصف پیدا کرده اند. سه عنصر بانک صادرکننده، دارنده کارت های اعتباری و ارائه کننده خدمت، تحلیل ماهیت روابط بین اطراف و شناخت آثار را دشوار کرده است. هدف از این پژوهش، شناخت و تحلیل این ماهیت دشوار است که براساس روش توصیفی تحلیلی سامان یافته است. در نظام حقوقی عراق، ایران و الجزایر، به جهت ورود نکردن مقنن به روشن کردن ماهیت مزبور، حداقل پنج نظریه حواله حق، حواله دین، تعهد به نفع ثالث، نیابت در ایفاء و عقد نامعین شناسایی شده که در این نوشتار، به فراخور مطالعه تطبیقی، موارد فوق محل توجه و تحلیل قرار گرفته است. حواله حق و حواله دین در هیچ یک از نظام های مزبور قابلیت پذیرش ندارد. در مقابل، تعهد به نفع ثالث و نیابت در ایفا در حقوق عراق و الجزایر با پذیرشی نسبی مواجه شده است. در حقوق ایران، با توجه به ماهیت خاص این روابط و همچنین وجود ماده 10 قانون مدنی که بیانگر اصل حاکمیت اراده است، می توان ماهیت مزبور را عقد نامعین دانست تا شامل تمامی ماهیت مزبور باشد.An Analysis of the Nature of Bank, Customer, and Debit Card Service Provider Relationships in the Laws of Iran, Iraq and Algeria
With the emergence of electronic money and the spread of credit cards, new legal aspects emerged. Among the different types of credit cards, debit cards have become more important due to their prevalence. The three elements of the issuing bank, the credit card holder and the service provider have made it difficult to analyze the nature of the relationships between the surroundings and recognize the works. The purpose of this research is to identify and analyze this difficult nature, which is organized based on descriptive and analytical methods. In the legal system of Iraq, Iran and Algeria, due to the absence of the legislator to clarify the said nature, at least five theories of transfer of rights, transfer of debt, commitment to the benefit of a third party, proxy in performance and indefinite contract can be recognized, which are worth studying in this article. The comparison of the above cases has been the focus of attention and analysis. Right transfer and debt transfer cannot be accepted in any of the mentioned systems. On the other hand, the obligation for the benefit of the third party and representation in the performance has been met with relative acceptance in the laws of Iraq and Algeria. In Iranian law, according to the specific nature of these relationships and also the existence of Article 10 of the Civil Code, which expresses the principle of the sovereignty of the will, the aforementioned nature can be considered an indefinite contract to include all of the aforementioned nature. Keywords: Credit Cards, Debit Cards, Remittance Contract, Condition in Favor of a Third Party, Proxy in Payment 1. Introduction With the transformation of societies and the emergence of the phenomenon of urbanization, new requirements emerged in the field of interpersonal relationships. The volume of liquidity increased due to the establishment of private and public banks and economic growth, and the conventional needs of individuals also increased. Carrying cash to buy and meet life's needs was difficult and associated with risks such as theft, loss, etc. In the meantime, with the emergence of electronic money, credit cards were welcomed by the public. Therefore, the banks created cards based on which the holder used the said card to go to the service provider and purchase their needs. This action faced challenges due to its non-exclusivity between the two parties of a contract. Explanation that in most traditional contracts, the parties are exclusive to both sides of the contract. For example, the sale between the seller and the customer, the lease between the lessor and the lessee, the loan between the borrower and the lender, and the loan between the lender and the borrower are terminated, and this makes the analysis of the legal nature easy. But in the case of credit cards, which have various types, the parties to the contract are not exclusive. Rather, it is a tripartite relationship that makes it difficult to analyze. Among the types of credit cards, the focus of this article is on debit cards, which have an important position due to their popularity in Iran and are about to be popular in Iraq and Algeria. Therefore, the main question of this research is based on the legal nature of the relationships surrounding debit cards in the countries of Iran, Iraq and Algeria, and it is possible to find a single nature to explain this relationship based on the legal systems of these three countries? The answer to this question and other similar questions in the article can solve many ambiguities in this regard. Regarding the history of the research, it should be mentioned that although useful research has been done regarding credit cards, regarding cash payment cards or debit cards, the only independent research that the authors have achieved is a book entitled "Debit Cards" written by Dr. Maryam Jalali. It is dedicated to the rights of Iran and America. Therefore, the current research is completely unprecedented in order to compare the aforementioned nature in the legal systems of Iran, Iraq and Algeria. In this regard, firstly, the concept of credit cards and their types are discussed, then the characteristics of this category of cards are discussed, and then, focusing on debit cards, the nature of the relationship between the holders of these cards with the bank and the service provider in three systems. The rights of Iran, Algeria and Iraq are covered. The nature of this contract is one of indefinite contracts and it falls under Article 10 of the Civil Code. One of the effects of accepting this theory in Iranian law is that it is necessary to clearly agree on the rights and obligations of the parties. In other words, if a nature is included under indefinite contracts, due to the lack of detailed legal texts, it is necessary to define its limits and loopholes carefully and clearly by the parties. Second, these contracts are proprietary, necessary, and among objective contracts. Therefore, the holder gives a certain amount to the bank and the bank opens an account for him that has a special identity. This contract is temporary; insanity and stupidity are not grounds for its dissolution. But the death of a natural persons causes the account to be closed. Therefore, as soon as the bank informs the customer of the death of the customer, the banking operations in the deceased's account will be stopped, and for this reason, legal actions against the debit card by others after the death of the deceased will not be valid. Also, the concept of agency does not have a place in this contract, because ownership rejects agency. Also, based on the commitment to Article and the principle of freedom of contract, banks can add restrictions for their commitment to fulfill their financial obligations regarding the debit card. As is the case today, in bank contracts, it is stipulated that banks and other institutions will not be allowed to act on the provisions of the customer's will, unless the certificate of the estate office stating that the said will has been submitted to the estate office by the executor or heir is presented. to be On the other hand, it is easy to imagine the intrusion into the ownership of the debit cards due to the agreement between the bank and the former owner. In Iraqi law, the nature of this contract can be considered as a special nature that does not conform to any of the defined legal formats. In Algerian law, the nature of this contract is considered to be a new essence that none of the known formats can interpret. Therefore, before the transaction and use of credit cards, the card acceptor does not have the right to make any demands from the cardholder regarding the price. Also, the bank's obligation to pay in front of the acceptor is closely related to the performance of all the actions included in the valid contract between him and the bank, and thirdly, the bank's obligation is a personal obligation that the bank has to pay in front of the acceptor; Therefore, the bank cannot invoke against the acceptor the defenses it has against the holder, just as the holder cannot invoke against the bank the defenses it has against the acceptor. 2. Methodology In this study, using the library research method and data collection, I first categorized the theories regarding the nature of this contract. Initially, four noteworthy theories were examined. Then, by analyzing and evaluating each theory, their strengths and weaknesses were identified. Subsequently, by assessing the position of each of these theories in the mentioned legal systems, I demonstrated that although some scholars have advocated certain theories, none of them can sufficiently explain the nature in question. Finally, by presenting my selected viewpoint, I proposed my own perspective, suggesting a new and independent nature. 3. Results and Discussion Cash payment cards, which are used as one of the most important means of payment today, are becoming popular worldwide. One of the characteristics of debit cards is being a means of payment, being personal, three-way communication, the bank's dominance and not being exclusive to one country. These cards have been accepted in Iran's legal system for years. The countries of Iraq and Algeria have also taken steps in this regard. Due to the importance of regulating the relations between cardholders and banks and service providers, several theories have been presented in this regard. The theory of transfer of right, which can be translated as transferee in Iran's legal system, the theory of Haval al-Din, the condition in favor of a third party, and representation in payment are among these theories. The analysis and analysis of the aforementioned theories showed that the theory of the transferee cannot be accepted due to the personal obligation of the cardholder in front of the bank and the failure to listen to his objections in front of the bank. The theory of debt remittance is also considering that on the one hand, in the legal system of Iran, Iraq and Algeria, it is necessary to have debt in the realization of the remittance, and the bank issuing the remittance is not indebted to the holder, and on the other hand, in the remittance, with the realization of the remittance, there is a liability. The debtor is liable and the liability is impossible, while in the case of debit cards, by providing services, the holder and the issuing bank are simultaneously liable to the service provider, and on the other hand, the holder can simultaneously receive the same amount from the Store, ends cannot be responsible. The two theories of obligation for the benefit of a third party and proxy in payment, although in the laws of Iraq and Algeria, they are immune from the above defects, however, it seems that in the laws of Iran, the obligation for the benefit of a third party is also due to the lack of serious intention of the parties and the absence of any third party. One of the parties in this regard is not acceptable. Nebayt in payment also expresses a part of the reality in the form of a power of attorney contract, however, due to the numerous obligations of the bank and the holder, as well as some legal regulations of the Central Bank, it cannot express the entire nature of the aforementioned. Therefore, the nature of the relationship between the bank, the customer, and the service provider is an emerging issue that can only be analyzed based on Article 10 of the Civil Code. 4. Conclusions and Future Research In the modern era, bank cards have become one of the most widely used methods of financial exchange worldwide. These payment instruments—particularly debit cards—possess unique characteristics, including personalized usage, tripartite transaction processes, bank-controlled operations, and cross-border functionality. From a legal perspective, the nature of this contractual arrangement cannot be defined within traditional frameworks due to its distinctive features: Bank’s Ownership Role: The bank acts as the direct owner of the deposit, not merely as the cardholder’s agent. Proprietary Deposit: such deposits constitute a transfer of ownership. Binding Agreement: Unlike voidable contracts, this agreement is mandatory and cannot be unilaterally terminated. Real Contract: Its validity depends on either physical card delivery or digital authentication. Given these unique attributes, this contract represents a novel legal concept that can only be interpreted under Iran’s legal principle of <em>autonomy of will</em>. Key implications include: Merchant Restrictions: Card-accepting entities (e.g., retailers) cannot claim payment from the cardholder prior to transaction completion. Conditional Bank Liability: The bank’s payment obligation is contingent on full compliance with its merchant agreement. Independent Legal Relationships: Defenses available to the bank against the cardholder cannot be invoked against the merchant, and vice versa. Due to the complexity of this legal mechanism, legislators must establish a dedicated regulatory framework. Clarifying its nature will not only prevent future disputes but also foster a more secure environment for digital banking expansion.
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