Dep.

Legal ppi 201502ZU4649

es continuidad de la revista impresa

Depósito legal pp 197402ZU34 / ISSN 0798-1171

Universidad del Zulia

Facultad de Humanidades y Educación

“Adolfo García Díaz”

Maracaibo - Venezuela
Revista de Filosofía, Nº 86, 2017-3, pp 117-129

Investigation of the Government’s Civil Liability

in the Production of Tobacco Products

Investigación de la responsabilidad civil del gobierno en la pro-

ducción de productos de tabaco

Mohammad Reza Beykian*

*MA of Private Law, Islamic Azad University - Meymeh Branch

Abstract

The expansion of human relationships expands the scope of responsibility and the respon-
sibilities don’t actually materialize except in the world of law. Obviously, the complexity
and delicacies that come into the law science at any time also enters the realm of responsi-
bility. One of these responsibilities is civil liability, which in a general definition calls for
the compensation of losses inflicted on a person, whether the occurrence of the resulting
loss is due to performing an action or leaving an action.
Manufacturers of goods may also bring losses to individuals through the production of
defective goods or goods not having the required standard; so they can be known as liable
persons. It is always possible for a marketed product to become defective. In this case, the
subject of “producer and supplier liability” arises. In the prodution of tobacco products,
given its governmental monopoly in Iran, it is possible to take into account the govern-
ment liability and justify this liability based on theoretical foundations of fault, risk
creation and the guarantee of the right. Among the pillars of the civil liability of tobacco
manufacturers are damage, harmful action and the causal relationship between damage
and harmful action. Sometimes the loss is individual and sometimes it affects a particular
stratum or class. In any case, compensation can be made by proving the liability of the
responsible person.

Keywords: civil liability, production of goods, tobacco products, government civil liabili-
ty, compensation

Recibido 30-01-2017 – Aceptado 15-02-2017

 Mohammad Reza BeykianRevista de Filosofía, Nº 86, 2017-2, pp. 117-129 118

Resumen
La expansión de las relaciones humanas amplía el alcance de la responsabilidad y las
responsabilidades no se materializan realmente, excepto en el mundo de la ley.
Obviamente, la complejidad y las exquisiteces que entran en la ciencia de la ley en
cualquier momento también entran en el ámbito de la responsabilidad. Una de estas
responsabilidades es la responsabilidad civil, que en una definición general requiere
la compensación de las pérdidas infligidas a una persona, ya sea que la ocurrencia de
la pérdida resultante se deba a la realización de una acción o el abandono de una
acción.
Los fabricantes de bienes también pueden ocasionar pérdidas a las personas a través
de la producción de bienes defectuosos o bienes que no tienen el estándar requerido;
para que puedan ser conocidos como personas responsables. Siempre es posible que
un producto comercializado se vuelva defectuoso. En este caso, surge el tema de la
"responsabilidad del productor y del proveedor". En la producción de productos de
tabaco, dado su monopolio gubernamental en Irán, es posible tener en cuenta la
responsabilidad del gobierno y justificar esta responsabilidad sobre la base de funda-
mentos teóricos de la culpa, la creación de riesgos y la garantía del derecho. Entre los
pilares de la responsabilidad civil de los fabricantes de tabaco se encuentran el daño,
la acción dañina y la relación causal entre el daño y la acción dañina. A veces, la
pérdida es individual y, a veces, afecta a un estrato o clase en particular. En cualquier
caso, la compensación se puede hacer demostrando la responsabilidad de la persona
responsable.

Palabras clave: responsabilidad civil, producción de bienes, productos de tabaco,

responsabilidad civil del gobierno, compensación

1. Introduction and Problem Statement

Although the advancement and industrialization of societies and the mass production
of complex goods have brought prosperity, it has also exposed consumers with risks.
The difference in levels of consumer and producer awareness about commodity
production and the understanding of the risk level of any commodity require govern-
ment intervention for consumer protection. In this regard, effective steps have been
taken by the legislator to protect consumers, including the imposition of legal liability
to compensate for the damage caused by the produced goods on the manufacturer or
supplier, which has been considered in the laws of many countries.
Spending a long period of time between the design and approval of the consumer rights
protection law between 1993 and 2009 created the expectation for the country's legal
community to face with a comprehensive and coherent set of rules which could take
into account the liability for production defects in terms of legal aspects as well as
economic efficiency according to the realities and experience of other legal systems.
119 Mohammad Reza Beykian Revista de Filosofía, Nº 86, 2017-2, pp. 117-129

However, such an expectation has not been fully realized; in such a way that the law does
not create or change any legal equations in the interest of consumers, especially in terms
of the basis and limits of producer liability, except in terms of criminal liability; as some
have called its approach the re-reading of traditional rules. Approval of this law, compa-
red to consumer protection laws in other legal systems of the world, has been accompa-
nied by many ups and downs, in particular, in comparison with the European Community
Directive 1999 on particular aspects of the sale of consumer goods. In general, regarding
the protection of consumer rights, in addition to the abovementioned Directive, "the
European Community Directive on liability for defective products", adopted in 1985 is
one of the most important laws of the European Community for harmonization of the
governing laws. The French law of 19 May 1988 is also worthy of attention. One of the
goods which its consumer protection can be considered is tobacco. Except that smoking
normally endanger the health of consumers, the production of tobacco products without
the required standards may cause other losses to the consumer and raise the liability of
the manufacturer. On the other hand, in accordance with Article 1 of the Monopoly Law
on Tobacco; "From the date of the enactment of this law, the right to enter and export,
and to purchase, procure, maintain and transport tobacco products and types of cigarettes
throughout the country is exclusive to the government and this monopoly is called the
governmental monopoly of tobacco. The maintenance and installation of tobacco-cutting
equipment is reserved exclusively to the monopoly institute and nobody will have the
right to do so without the permission of the institute and the monopoly institute must buy
all existing tobacco-cutting equipments, which has not allowed anyone to maintain and
install them or allowed and then denied, from their owners at fair price.”
According to the article, the producer and importer of tobacco is the government. Hence,
if damage is caused by a defect in the production of this product, then the government is
directly responsible for it and the government, in the first place, is liabile to compensate
for the damage.
The question is, what about the civil liability of tobacco manufacturers? And as a conse-
quence, one can ask the main question: how can the liability of government as a producer
and importer of tobacco products be justified and evaluable? And sub-questions can be
put forward as follows: What are the foundations of civil liability of commodity produ-
cers? What is the basis for compensation of damages inflicted on consumers by produ-
cers?
Since civil liability of tobacco manufacturers has not been studied in a specialized and
centralized manner so far, discussion in this area justifies the necessity and importance
of a research in order to clarify legal issues of liability. The main objectives of this study
are to examine the basis of the civil liability of tobacco manufacturers, to review the
government's liability for the production and distribution of tobacco products, to provide
solutions for identifying the civil liability of producers of goods including tobacco and
compensation for
 Mohammad Reza BeykianRevista de Filosofía, Nº 86, 2017-2, pp. 117-129 120

damage to consumer, and to offer suggestions for legislation to identify the liability of tobac-
co manufacturers and determine the extent and limits of their liability for protecting consu-
mer rights.
2. Fundamental definitions and concepts

The first step in examining a subject is to have a proper definition of the subject and its
components. Hence, in this section, we define and explain the terms and concepts used in this
research to get more familiar with the subject and its purpose.
2.1. Civil liability
Liability lexically means question or being questioned, and is used conceptually as duty
separation (Amid, 1996; 95), and in the term; it is the legal obligation of a person to repel the
damage he caused, whether arising from his own fault or from his activity (Jafari-Langroudy,
2010; 642).
Liability in the Latin sense is synonymous with the term "Responsibility", which derives
from the word "Response". In the legal and civil sense, liability is the legal duty of a person
not to directly or indirectly damage to another person (Khalilifar, 2011; 44). In the jurispru-
dential and religious terms, liability has been used synonymously with the term "guarantee"
and the responsible person is called liable or guarantor (Khalilifar, 2011; 46).
2.2. Defective goods
The goods include movable goods, which may be separate goods themselves or installed in
other movable goods or immovable property. The examples of the goods are very varied and
include food, clothing, cosmetics, machinery, pharmaceuticals, construction materials, and
any items that are exchanged and used (Ebrahimi, 2003; 67).
Defect in the good includes any form such as defect in the design or creation of the goods,
whether due to the use of low quality raw materials, whether due to lack of observance or
inadequate accuracy and expertise in the process of production and supply of goods; which
leads to reduction in economic value and impossibility of conventional profiting from it, or
causes damage to the consumer. Therefore, the producer must produce the product in a way
that is not commonly defective. The defect also includes a lack of complete guidance on the
proper use of the goods, problems and complications caused by the lack of proper use of it,
and any factor that threatens the health and well-being of the consumer and other parties
(Jafaritabar, 1996; 83).
2.3. The concept of consumer, producer and supplier
A consumer is a natural or legal person who purchases goods or services for personal use (not
for profit or business purposes). Now, if a deal is concluded between two people who have
the same specialty, they are not subject to consumer protection laws (Bozorgmahr, 2006; 45).
The producer is the person who makes the product and the good from raw materials or from
a combination of several manufactured commodity. Since the first chain of production is
related to him, the manufacturer is obliged to completely inspect the product in order to
avoid defect in it (Fattahzadeh and Amini, 2012; 141).
Supplier of Goods and Services refers to all manufacturers, importers, distributors and sellers
of goods and suppliers of technical and professional services (Bozorgmahr, 2006; 48).
121 Mohammad Reza Beykian Revista de Filosofía, Nº 86, 2017-2, pp. 117-129

3. The Pillars and Foundations of Civil Liability

3.1. Civil liability pillars
In order to fulfill the civil liability, however, there are three basic requirements. Article 1 of
the Iranian Civil Liability Act states that “anyone who harms deliberately or, as a result of
carelessness, to life or health or property or liberty or prestige or commercial reputation, or
any other legal right created by law to individuals, which causes material or moral damages
to another person, is responsible to compensate the damages caused by his action”.
Article 10 of the Act stated more clearly in this regard: “Anyone whose personal or family
prestige and credits have been damaged can demand to compensate for his material and
spiritual losses from the person who has inflicted the injury. If the significance of the loss
and type of fault require and if the fault is proven, the court can rule, in addition to issuing a
verdict for financial damages, for the removal of losses through other means, such as apolo-
gizing, inserting judgments in jerries and the like.”
In the first place, there must be a loss with all of its particular conditions. In addition, a
harmful act attributable to a person must be proven. And finally, the causal relationship
between the two is commonly conceivable. These three conditions are the three main pillars
of civil liability, and without any of them any civil liability will not be realized and only with
all three of them, someone is responsible. In addition to these, the proof of the fault is also
required in matters on which responsibility is based on the fault. Some do not distinguish
between the fault and the harmful act, and consider them to be two material and spiritual
elements of the same reality (Sanhuri, 2005; 35). Others, despite the distinction between
them, have not exactly specified the position and usefulness of this distinction (Katouziyan,
2011; 34). On the other hand, fault does not play a role in matters where the basis of liability
is the risk.
Civil liability is essentially due to imprudence of individuals. However, for the fulfillment
of civil liability, there are three pillars:
A) Existence of Loss: The purpose of the civil liability rules is to compensate for the
loss, so the loss will naturally be prior to the compensation. As article 1 of the Iranian Civil
Liability Act states: “Anyone inflicting the loss without legal authority…, which causes
material or moral damages to another person, is responsible to compensate the damages
caused by his action”.
B) Committing a harmful or illegitimate act: Inflicting harm on another should be
done with an illegitimate act, in order to be compensable; in this case, Article 1 of the Civil
Liability Act states: “Anyone doing action without legal authority… causing harm to
somone else is guarantor”. However, In cases where the act is legitimate, such as legitimate
defense, if it causes damage, he will not be responsible for damages; as Article 15 of the
Civil Liability Act confirms (Katouziyan, 2003; 89).
C) The causal relationship: Only the existence of loss and the commission of an illegi-
timate act will not be caused compensation, and the causal relationship must be established
between the harm, the injuring party and the harmful act, so that the custom also testifies to
it.
 Mohammad Reza BeykianRevista de Filosofía, Nº 86, 2017-2, pp. 117-129 122

A) The theory of fault: The faulty person must compensate for the damages which he
has inflicted on another.
B) Risk making: The risk maker in this theory is responsible to compensate the dama-
ges to another, though not faulty.
C) Mixed theory: Proponents of this theory have also contributed to both the above-
mentioned theories.
D) Guarantee of the right: The supporters of this theory have stated that everyone in
the community has a right and this right is protected by current laws; so they do not consi-
der the above theories to be correct. While what has been accepted in our civil liability law
is most of the theory of fault.
The legal doctrine considered the basis of civil liability to be a fault at the beginning. the
was legal doctrine attempts separate civil liability from criminal liability. But legal
scholars, in some particular cases, were separated from the theory of fault and tended to risk
theory and guarantee of the right. This trend has accelerated nowadays (Aslani, 2005; 67).
The basis of civil liability justifies its existence so that the fault or risk is the basis to specify
eligibiles to take civil liability. After damages have been realized and civil liability has
occurred, the fault or the risk is a tool which determines the responsible person for the civil
liability (Katouzian, 2009; 190); in other words, they are the basis for determining responsi-
ble, not the basis of civil liability.
As a result, it seems that the basis of civil liability is to protect the person suffered a loss and
to fairly distribute the damages. Obviously, the unjust losses caused by social life must be
compensated. This is an axiomatic legal rule and, like other axiomatic rule, is one of the
first legal rules that human beings found. The systems of revenge, vengeance and criminal
penalties were the methods invented to support the lost. However, their inefficiency to
support the injured people and to prevent future losses, as well as to compensate for the
losses, caused the separation and establishment of civil liability entitiy. In other words,
along with the continued efforts of scholars, the civil liability entitiy was born in order to
ensure that people are safe from the unjust harm caused by the community, in order not to
be imposed on them unjustly, and in order to properly distribute some of the losses automa-
tically generated from social life.
The right to compensation is based on asking for a reason creating the right for the lost
person to compensate for his losses. What causes a lost person to have the right to compen-
sation? Since the establishment of liability entitiy until the 19th century, the basis of such a
right was the fault of injuring party. The fault is either the action that causes responsibility
or the basis for the right to compensation; but in some cases, the basis for the right to
compensation has been changed due to the shortcomings of the theory of fault and its
ineffectiveness to compensate for the damages, hence, the concept of risk is replaced.
Attention to the risk justifies the compensation for the damage caused by the incident in
some of the activities, because this damage is compensable as a symbol of the realization of
a risk or danger that a person must undertake it regardless of any fault that caused the
damage (Patrice Jourdan, 2006; 57)
123 Mohammad Reza Beykian Revista de Filosofía, Nº 86, 2017-2, pp. 117-129

Determining the responsible for the cases which the basis for the loss is a fault is not so
difficult. When the fault is the cause of the damage, it also determines the responsible
person because naturally someone who has been harmed by his fault must respond for it.
In cases where the basis for the right to determine damages is risk creation and no attention
is paid to fault, it's a little more difficult to determine the responsible. Some believe that the
responsible is the person who has created the risk and has profited and benefited through
it. On the contrary, it is said that the creator of the risks is responsible, regardless of who
benefits. The other viewpoint is to take responsibility for the person who is in charge of
power, authority and risk control such as the employer and the supervisor (Patrice Jourdan,
2006; 58).
The foundation or basis of the civil liability is to protect lost person and to fairly distribute
the damages. For liability arising from the production of goods, the civil liability is also
based on this basis and aims to prevent and compensate damages.
4. Government Liability as a Trading Company in the Production and Distribution
of Tobacco
The principle that the injuring party must be responsible for the losses is an obvious princi-
ple in the relations between the natural persons. But what should be discussed is the liabili-
ty of the government as the ruling power and the supreme decision maker in relation to the
country and community affairs. Although in the past, due to the unilateral authority of the
government, it was meaningless to criticize and protest it; but now, with the development
of urbanization, the explanation of the fundamentals of the rights of individuals towards
the government, and the introduction of citizenship rights and human rights, the unilateral
authority of the government in the eyes of the people has been moderated. The perfection
of a government is to acquire the consent of the people under their sovereignty in various
ways. On this basis, among important issues is the civil liability of the government for
actions and decisions that are considered harmful to some citizens. The government's
obligation to compensate private individuals is construed as the civil liability of the gover-
nment. In a simpler sense, the government’s civil liability can be studied in two separate
discussions, considering the distinction between two roles of the government, governing
and possessive roles.
The governing role of the government suggests that the mission or purpose of establishing
a government returns to the role it plays in the social life of humans. This role can be the
defense of individual freedoms, the defense of communities within society and collective
interests, the fair distribution of wealth, the promotion and consolidation of a particular
ideology, and so on, which is expressed in various political schools. On the other hand,
each mission needs its own container and the political authority, which is the ability to
dominate the political community, has the potential to grow based on its purpose only in a
particular form of government. These particular forms are the ways humans contribute in
the political sector of the state, that is, government (Khaleqi, 2009; 101). Also, following
the civil liability of the government from its mission means influencing the concept of
liability pillars, i.e. fault, damage and causality relationship. The breadth of these concepts
depends on the definition of the government and its role in any political society.
 Mohammad Reza BeykianRevista de Filosofía, Nº 86, 2017-2, pp. 117-129 124

According to Article 44 of the Constitution, the possessive role of the government can be
explained as follows. Administration of the public sector of the economy is one of the major
responsibilities of the government. This sector is publicly owned and includes large-scale and
mother industries, foreign trade, banking, insurance, aviation, power generation, shipping,
railways, large mines, tobacco production and distribution, and so on. Since these are in fact the
infrastructure of the country's economy and, on the other hand, the development of the indus-
trial sector is dependent on them. So the executive agencies should provide the prosperity of all
the economic facilities of the society by fulfilling these tasks. One of the areas where the gover-
nment has a possessive role to play is the production and distribution of tobacco, acting as a
private legal entity.
5. Types of Civil Liability Caused by Tobacco Production
Law is responsible for social life regulation. The legal rules seek to provide a society in which
human beings can live together with their different tastes and thoughts, and seek happiness and
perfection in the greatest possible degree of security and freedom without any disturbance or
threat.
As stated in the discussion above, the production and distribution of tobacco products are
monopolized by the government. Generally, the civil liability of tobacco manufacturers is
subject to both contractual liability and non-contractual liability. The contractual liability is
based on the principle of the autonomy of will of the parties and non-contractual liability
arising from legal requirements, public order and disciplinary rules.
5.1. Contractual liability
If there is a contract between the consumer and the producer, the title of contractual liability is
raised. This type of liability is created if the producer or seller concludes a specific contract
with the consumer. If the contract explicitly stipulates that the producer is obliged to submit the
object of sale to the client in a healthy and non-defective manner, failure to surrender is a breach
of contract and subsequently, establishes contractual liability. This kind of liability is objective
and strict; that is, it is not necessary for the obligee to prove the committed fault in breach of
contractual obligations. Breach of contract is itself a fault and the obligor must bear the damage
(Safaei, 2003; 112). If the contract is concluded without any conditions, the use of contract
requires that the object of sale must be free of latent defects, because an ordinary person pays
his property against an intact object.
Another assumption is that the manufacturer is aware of the flaw of his goods, because profes-
sional manufacturers are primarily aware of the defects and dangers of their defective goods.
Even if they do not have the wrong intention to supply such goods, since they can easily be
aware of the imperfections of their goods, they are considered to be remiss in their obligation
(Katouziyan, 2002; 76).
On the other hand, the assumption of the existence of a relationship between the damage and
failure to perform the contract obligation by obligor implies that it is necessary to establish a
relationship between the damage sustained by the obligee and the non-fulfillment of the obliga-
tion by the obligor so that the violation of the obligation can be directly attributed to the damage
sustained. In accordance with Article 220 of the Civil Code, non-fulfillment of obligations
includes not only the obligations contained in the contract, but also the obligations customarily
 125 Mohammad Reza Beykian Revista de Filosofía, Nº 86, 2017-2, pp. 117-129

resulting from such a contract. The manufacturer undertakes to surrender the object of sale to
the consumer in his initial obligation, but in the secondary obligation, he undertakes to guaran-
tee its high level of safety and health. Detecting secondary, subordinate or implied obligations
of the contract is not an easy task, but it requires the awareness of the parties about the custo-
mary requirements and peremptory norms and enforceable legal judgments.

5.2. Non-contractual liability

Whenever there is no direct contractual relationship between the producer and the consumer,
this type of liability is posed. In this type of liability, the defective product is used by a third
party that is alien to the contractual relationship. In such a situation, the producer's liability to
the consumer, who has no contractual relationship with him, is a non-contractual (automatic)
liability . In this case, instead of the contract, the law judges, i.e., the person who causes the
damage has violated the law is the culprit and responsible and must compensate the damage.
5.2.1. The pillars and elements of the automatic guarantee in the production of goods
To fulfill production-based non-contractual civil liability, there should be the following
elements:

A) The existence of loss: The purpose of civil responsibility and its existential philosophy is
compensation for the losses and damages and to realize this philosophy, it is essential that there
is a loss. Article 1 and 2 of the Iranian Civil Liability Law consider the creation of loss as one
of the pillars of civil liability.
Types of losses can be expressed in accordance with a general legal classification:

1- Material and spiritual loss: Loss may be material or spiritual. One of the most signifi-
cant examples of losses is material damage, as stated explicitly in Article 1 of the Civil Liability
Act. This kind of loss is objective and palpable and in order to compensate for damage, it is
possible to determine the damages and appraise them as money. Material losses may be
incurred as lack, destruction, diminution or loss of profit.
The spiritual loss is not an objective and material loss; it affects a person's personality, prestige
and reputation and leads to the loss of his freedom. It is not possible to determine and appraise
this kind of damage properly. For example, it is not exactly possible to assess the damage suffe-
red by a person after the death of a relative due to the use of a defective tobacco product and
satisfy him through compensation.
Sometimes, due to the use of defective goods, both material and spiritual loss may be inflicted.
For example, Along with smoking tobacco without adequate quality, the beauty of the person
will also disappear. In 1934, the French Council, for the first time, was entitled to compensation
for spiritual damage, in addition to material damage, to a woman who was wounded and lost her
beauty by accident in the laboratory (Abu al-Hamd, 1970; 9).

2- Individual and social loss: Individual loss caused by a defective product reaches only
a consumer, while social loss occurs to the class, union or population and a certain category. A
producer of a defective product may not only cause losses to the consumer,
 Mohammad Reza BeykianRevista de Filosofía, Nº 86, 2017-2, pp. 117-129 126

but may at the same time be liable to other manufacturers in the market for that particular
product. Although proving such a loss in the court is complex and difficult, but if the occurrence
of such a loss is proved, it is recoverable.
B) Harmful act: To consider liability for a manufacturer due to the production of a defective
product, it must be verified that his harmful act is illegitimate and, in accordance with Article 1
of the Civil Code, "without legal authority".
C) Directness of the loss: It means that between the harmful act and the damage done, there is
no other action or incident that overwhelms the element of directness and immediateness of the
harm.
5.2.2. Foundations of non-contractual liability in the production of goods
Proof of automatic liability arising from the production of goods may be based on one of the
following principles and rules:
A) Strict Liability: This basis, which reflects the victory of consumers against producers
and the government's intervention in protecting consumers, was first introduced in the European
and American countries. Accordingly, anyone who is damaged by a defective product is entitled
to claim for compensation and the manufacturer and its related chain, such as the exporter,
distributor, wholesaler and retailer, are sued for compensation although all necessary care is
provided for manufacturing and delivering the goods (Roudbarani, 2006; 7-9). The civil liability
in this theory is so widespread that the producer is even responsible for the invisible and unpre-
dictable defects. Of course, In order to be able to benefit from the strict liability, the consumer
needs to prove that; firstly, the good has been defective; secondly, the defect occurred at the time
of sale or before the goods leave the manufacturer or seller's control; thirdly, the defective
product has caused damage to the consumer.
B) Fault-Based Liability: Based on the fault, the person inflicting the loss or damage is
responsible if he has committed the fault and examining his misconduct determines that the
resulting loss is due to his fault. The fault is to quit the action that a person is required to do so
or to commit a prohibited act.
The losing person is faulty if it is proven that he has not taken the precautions which any
cautious person habitually does. While, if he has taken the necessary precautions, then he will
not be liable for any damages incurred (Emami, 1996; 11).
C) Liability Based on Indirect Destruction: On the basis of indirect destruction, a person
will be liable to compensate for any damages caused by the sale and supply of the defective
goods (Article 1 of the Civil Liability Act and Article 331 of the Civil Code).
The injured consumer can benefit from the indirect destruction basis, if he can prove that:
Firstly, the defect has existed in the production stage or after production and before sale, or the
defect has been created after using the goods due to lack of necessary care during production or
insufficient skill in the production, in other words, there is the causal relation between the defect
and the producer's fault. Secondly, the manufacturer or seller does not undertake any appropriate
safeguards and precautions customarily followed by any manufacturer or seller at the stage of
manufacture or sales, and the losses inflicted on the consumer have been arised from it. For
example, a tobacco manufacturer has not used appropriate raw materials to make products or
has
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not tested, checked and inspected his product, or has not applied the adequate and technical
principles in the production phase, or has avoided employing skilled workers specializing in the
production of goods, or has not paid enough attention in the packaging of goods, or have not
provided sufficient warnings and guidance for the correct use of the goods after delivery, or has
not informed the consumer about any potential risks arising from the use of the goods, or in
general has not met criteria clearly and conventionally considered for each of the manufacturing
and trading industries.
D) Risk-Based Liability: According to this theory, it is not necessary to prove the fault or
the causality relationship by the loser; but the act leading to loss is merely the criterion for
compensation. The benefits of this theory are that, firstly, it is not up to the loser to prove the
fault or the causal relationship, which is a very complex and difficult process, secondly, most
damages are from the owners of the company, capital and major producers which their fault or
cause can not be proven due to their power and influence and the commercial complexity.
It can be said that this theory is in line with the principle of "no harm, no damage" (Mohammadi,
2010; 153; and Mohaghegh-Damad, 2011; 200) in religious jurisprudence. This principle
implies that nobody should be harmed by anyone. Therefore, someone who is harmed by the
product will be entitled to claim for compensation; even if there is no contractual relationship
between him and the producer.
E) Liability Based on the Guarantee of Right: In this theory, instead of paying attention to
and evaluating harmful act and intent, the lost interests of the injured person and his legal rights
violated are taken into account which seeks to guarantee the lost rights. This theory implies that
everyone in society has the right to live in comfort and security and has the right to his life and
physical integrity of himself and his relatives and can enjoy from his properties and assets and
their benefits.
F) Liability Arising from Violation of Supportive Peremptory Regulations: Producers
should not be held liable only for breach of their obligations to the consumer so that a contrac-
tual relationship is to be established, but if the government intervenes on the basis of good
morals and public order (subject to Article 22 of the constitution of the Islamic Republic of Iran
and Articles 974 and 975 of the Civil Code) and to protect the poor consumer class, and then
developes supportive peremptory regulations and does not allow violation, escape, exemption
or exception from it; in this case, the offender should compensate for the damage inflicted on
harmed person.
6. Conclusions and Recommendations
Summarizing the content, the following can be presented as a conclusion:
1- Civil liability of tobacco manufacturers is subject to both contractual liability and
non-contractual liability. The contractual liability is based on the principle of the autonomy of
the will of the parties and non-contractual liability arising from legal requirements, public order
and disciplinary rules.
2- One of the areas where the government plays a possessive role is to produce and distri-
bute tobacco, acting as a private legal entity. According to Article 44 of the Constitution, admi-
nistration of the public sector of the economy is one of the major responsibilities of the govern-
ment. This sector is publicly owned and includes large
 Mohammad Reza BeykianRevista de Filosofía, Nº 86, 2017-2, pp. 117-129 128

scale and mother industries, foreign trade, banking, insurance, aviation, power generation,
shipping, railways, large mines, tobacco production and distribution, and so on.
3- If the manufacturer or seller has entered into a specific contract with the consumer,
the contractual civil liability will be raised. If the contract explicitly stipulates that the manu-
facturer is obliged to submit the object of sale to the client in a healthy and non-defective
manner, failure to surrender is a breach of contract, resulting in contractual liability. This type
of liability is objective and strict and it is not necessary for the obligee to prove the committed
fault in breach of contractual obligations. Breach of contract is a fault and the obligated party
must bear the damage.
4- Proof of the automatic liability due to the production of goods may be based on one
of the following principles and rules; strict liability, fault-based liability, liability based on
indirect destruction, risk-based liability, liability based on the guarantee of right, and liability
arising from violation of supportive peremptory regulations.

Recommendations
1- Considering that the concept of indirect destruction in Iranian law has been mixed
with the concept of fault and the burden of tolerance will be on the lost consumer, it is sugges-
ted that the judges of the courts, taking into account the circumstances of each case, suppose
the producer's fault due to being aware of the defect in the goods to free the harmed party
from proof of fault.
2- It is suggested that the legislature establishs independent laws named as "the laws
and regulations of tobacco manufacturers" to identify the liability of tobacco manufacturers
and determine the extent and limits of their responsibility for protecting consumers' rights.

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