The Commercial Nature of Building Construction and Property Ownership in Iranian Law: An Analysis of "Inherently Commercial" vs. "Incidentally Commercial" Acts under Articles ۴ and ۵ of the Iranian Commercial Code

Determining the commercial nature of real estate activities remains a contentious issue in Iranian commercial jurisprudence. While Article ۴ of the Iranian Commercial Code explicitly excludes “transactions involving immovable property” from the scope of commercial acts, Article ۵ of the Apartment Ownership Act (۱۹۶۸) recognizes “constructing residential or commercial buildings for the purpose of sale or lease” as a commercial activity. This contradiction raises a critical legal question: when a building is constructed with the intent to generate profit, is this act “inherently commercial” (falling under Article ۴ of the Commercial Code through professional repetition by non-merchants) or “incidentally commercial” (falling under Article ۵ due to the actor’s status as a registered merchant)? This paper employs a doctrinal and jurisprudential methodology to analyze Iranian statutory provisions, judicial precedents, and scholarly commentary. It argues that the commercial character of construction activities hinges not on the nature of the property itself, but on two decisive factors: (۱) the legal status of the actor (merchant vs. non-merchant), and (۲) the presence of professional intent and repetition. The study further demonstrates that the Apartment Ownership Act does not contradict Article ۴ of the Commercial Code, as the former regulates a material, productive act (“construction”), while the latter governs juridical transactions (“sale/purchase of immovable property”). By clarifying these criteria, this research contributes to legal certainty in commercial litigation, jurisdictional determination in Iranian courts, and offers a framework applicable to comparative studies with civil law systems—particularly the French Commercial Code. The paper concludes with recommendations for legislative harmonization to eliminate interpretive ambiguities in Iranian commercial law.

کلیدواژه ها:

Iranian Commercial Law ، Article ۴ Commercial Code ، Article ۵ Apartment Ownership Act ، inherently commercial act ، incidentally commercial act ، construction ، real estate ، merchant status ، professional intent.