Hamid reza Behroozi zad
Abstract
The principle of satisfaction of contracts is one of the basic principles in Imami jurisprudence and Iranian law, which also has economic aspects. According to this principle, people conclude their contracts based on it. In this article, we have tried to prove that underwriting in the endowment is not ...
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The principle of satisfaction of contracts is one of the basic principles in Imami jurisprudence and Iranian law, which also has economic aspects. According to this principle, people conclude their contracts based on it. In this article, we have tried to prove that underwriting in the endowment is not only legitimate but also a definite contract. In fact, the difference between a definite contract and an indefinite one is in terms of prevalence and non-prevalence. The prevalence of this contract at the present time can be described as definite. In this case, we will not need other analyzes to justify the legal and jurisprudential nature of the underwriting. We will also move from formalism in contracts to the rule of will. This will be desirable for Imami jurisprudence and Iranian law and the economic view of the law. In fact, this economic view of the will will cause more attention to the contract regardless of its form and economic prosperity based on domestic jurisprudential and legal principles
Abstract
For the people of a society, “provision of the minimums” (Basic needs) is one of their rights, while it is also a duty upon the State. Not only does this legitimate and sensible right root in the divine religions, it also has roots in the thoughts of many justice-seeking philosophers and ...
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For the people of a society, “provision of the minimums” (Basic needs) is one of their rights, while it is also a duty upon the State. Not only does this legitimate and sensible right root in the divine religions, it also has roots in the thoughts of many justice-seeking philosophers and lawyers. The present article aims to examine this right from Iranian Law point of view by conducting a comparative study. This view, these days, is called Constitutionalization of private law. If this view is accepted, law-makers will change ownership law and it should be said that public law is related to this matter. It is concluded that having the minimum standard of life is a fundamental right for the members of a society and it must be fulfilled by the government as a responsible body. That is to say that the members of the public can legally claim this right, and condemn the government if it refuses to fulfil this duty.
Private Law
alireza bariklou; Alireza Azarbaijani; Hasan Omidvar
Abstract
The function of contemporary contract law goes beyond its classical function, which focused on the principle of contractual private and mutual interests. So that the function of contract law is to achieve social goals that are mainly to protect the security of legal relationship and necessity of debts ...
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The function of contemporary contract law goes beyond its classical function, which focused on the principle of contractual private and mutual interests. So that the function of contract law is to achieve social goals that are mainly to protect the security of legal relationship and necessity of debts payment, and not to harm others, the market regulation function whose main purpose is to support the market institution with three different approaches, -the self-reliance policy and minimal intervention, the transactional policy and exceptional intervention to finding the best solution to prevent the party from escaping the transaction, and the functional policy. Also, economic goals based on specific and case by case strategy such as the relief of hardship policies and general strategy such as economic planning policy of general rules to increase economic social welfare.A transaction with the intention of escaping from religion is a legal act that has caused difficulties in ensuring judicial justice, because the obligee by concluding such a transaction practically deprives himself of financial power and as a result, his previous obligation becomes non-binding according to the provisions related to debt.On the one hand, this situation causes losses to the creditors who have entered into a long-term transaction with the debtor's property in trust, and on the other hand, it causes the trader to benefit unjustly and illegitimately from the legal protections of the debtors, because according to the legal philosophy of these protection provisions, assistance is to the real debtors who themselves did not voluntarily expose them to debt, not those who use these protections as a means to escape from their obligations.In addition, the prevalence of this type of transaction, which leads to the appearance of a transaction without a composition, which is known as a formal transaction, and also the conclusion of a transaction without the intention of implementation, leads to the justice of the law of contracts and the provision of judicial justice, facing a problem in the subject law. to be The explanation of the issue is that the status of any contract can be examined in two stages: First, it is in the identification and legitimizing stage, in which the contract is evaluated in terms of social interests and general goals of contract law. If the transaction was in accordance with the goals of the basic principles, it will be recognized in the structure of the rights of the contracts, otherwise it will be declared prohibited. For example, Gharari transactions are not recognized in Islamic law, because it is against the goals of the basic principles. If a deal in this stage is in accordance with the underlying principles, it will be accepted and then it will be the second stage of its validation in the relations of the parties and in a case-by-case manner, whether the concluded contract has the correctness conditions? Therefore, the compliance of the transaction with the general rules and goals of contract law is referred to as legitimacy, and its non-compliance is referred to as illegitimacy and its compliance with superstructure rules, and its non-compliance is referred to as "nullity". It is worth remembering that although many books and articles have been written about this, but all of them have analyzed the issue from the point of view of validity and invalidity, while this article examines from the point of view of the legitimacy of the principle of the transaction, which according to the principle of respecting the rights of creditors, the trust of the Muslim market. And the social benefits and the need to resolve the conflict, has he considered such a deal as legitimate? In Iran's contract law, "transaction with the intention of evading debt payment" has become a legal problem in contractual relations, because on the one hand, in Article 218 of the Civil Code, such a transaction is considered valid and valid, and on the other hand, in the criminal regulations, It can be prosecuted under the title of fraud and other criminal titles. In this article, in an analytical-descriptive method, while rethinking and deepening the principles of contract law and distinguishing the superstructure and underlying principles, the status of this transaction was investigated in accordance with the basic principles of contract law, i.e. the principles from which the rules governing contracts are adapted.The main question of the current research is, what is the legal status of the transaction with the intention of avoiding debt payment from the perspective of the basic principles of contract law? It seems that the invalidity of this transaction is considered from the point of view of Sharia, because it brings consequences such as harming the creditor's income, depriving the Muslim market of confidence and increasing contract disputes, all of which are considered illegitimate according to Shari'a argumentsTherefore, in this article, in accordance with the general goals and function of contemporary contract law, in a descriptive-analytical manner, the Iranian contract law approach to the transaction with the purpose to escape debt payment was examined and it was proved that this transaction is not compatible with any of these goals so it is necessary to be changed.
Mehdi Shahabi; Zahra Khajoee
Volume 3, Issue 11 , June 2015, , Pages 71-100
Abstract
Globalization of law is an incontestable reality. It is a major concern, whichcan be justified not only from structural, conceptual and legal values perspectives,but also in terms of the legislative patterning realm. Laws of Islamic Nationscannot remain unaffected from this reality.The basis of viable ...
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Globalization of law is an incontestable reality. It is a major concern, whichcan be justified not only from structural, conceptual and legal values perspectives,but also in terms of the legislative patterning realm. Laws of Islamic Nationscannot remain unaffected from this reality.The basis of viable regulation and legal conceptions in European systems, andgenerally in the West, has a humane rationality nature. Thus, from substantiveperspective, globalization can be considered to be a kind of threat to laws ofIslamic Nations, since in Islamic law, humane rationality is not the sole basis forthe credibility of legal values, conceptions and structures. Here, it is assumed thatglobalization can be viewed as an opportunity, and the adoption of UnifiedIslamic Civil Code by following European Civil Code pattern may be regarded asan example of this opportunity. Nevertheless, the establishment of European CivilCode and an Islamic Civil Code encounters many challenges. By analysing thesechallenges, this article aims to present some solutions.
GholamNabi Fayzi Checab; Naeem Noorbakhsh
Abstract
Click-wrap license agreement is a branch of electronic contracts that during last two decades has been subject to a great deal of disputes due to presumption of lacking assent as a building block of contract formation. Providing a package of predetermined terms to all users and the impossibility of negotiations ...
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Click-wrap license agreement is a branch of electronic contracts that during last two decades has been subject to a great deal of disputes due to presumption of lacking assent as a building block of contract formation. Providing a package of predetermined terms to all users and the impossibility of negotiations between the parties to amend these contractual terms has led some experts to consider them to be unenforceable because of accession form and ambiguity of consent manifestation. However, by examining the judicial and legislative precedent of e-commerce in leading nations and by recognizing introduced measures in Iranian e-commerce law in the light of traditional rules of contract law, it is possible to find criteria which can be used as a means of inferring party assent and validity of these contracts. Therefore, adopting consumer protection provisions in e-commerce law would lead to provide clear and explicit presentation of contractual terms in a way that prevents ignorance and deception of users. This can be useful for ensuring consent of parties.
Mirghasem Jafarzadeh; Abbas Ansari
Volume 2, Issue 7 , March 2015, , Pages 73-97
Abstract
Vertical agreements refer to agreements made between those entrepreneurs who are at different level of the production chain. These agreements may contain some restrictive clauses which are not compatible with competition rules and regulation. Some of them have both negative and positive effects ...
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Vertical agreements refer to agreements made between those entrepreneurs who are at different level of the production chain. These agreements may contain some restrictive clauses which are not compatible with competition rules and regulation. Some of them have both negative and positive effects on competition. Rule of reason and economic analysis can determine their prohibition or permission. At the same time there are some other terms which, due to their special features and inherent negative effects, are regarded as presumptively and Per se illegal and named as hardcore restrictions, such as minimum resale price maintenance and territorial restrictions. At the first part, this article discusses the concept of prohibited vertical agreements. It also examines various instances of these agreements, and analyses each instance from comparative perspective of European Union, United States and some other countries. At the second part of this article, Iranian competition law in the light of vertical restrictive clauses is examined. In doing so, some shortcomings of Iranian competition rules and regulation in respect of hardcore restrictions will be highlighted by presenting a practical and critical assessment. This article concludes by proposing some recommendations for reform of Iranian competition law as to restrictive vertical agreements.
Ali Moghaddam Abrishami; Mazyar Aghasi Javid
Abstract
Laytime is the obligation of the ship's charterer to carry out loading / unloading operations within the stipulated time. Determining the exact point when laytime commences is determined by various factors and is important because exceeding laytime would result in the liability of charterer against shipowner ...
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Laytime is the obligation of the ship's charterer to carry out loading / unloading operations within the stipulated time. Determining the exact point when laytime commences is determined by various factors and is important because exceeding laytime would result in the liability of charterer against shipowner and many cases has been formed on this issue in the Common law system. However, under Iranian law, the subject is not addressed and the lack of rules, reveals the need to study the matter. The present article seeks to extract the criteria of commencement of laytime by adopting an analytical and interpretive method and examining the existing judicial case law and arbitral awards under common law system, which is the main origin of shipping law and to study the most important issues around each criterion. The findings of the article, indicate that in general, under the common law legal system, three cumilitive conditions exist, which lead to commencement of laytime when all of the mentioned conditions are met. These three conditions are the presence of the ship at the intended contractual destination, readiness of the ship, and finally the issuance of Notice of Readiness (NOR).
Majid Sarbazian; Seyyed Raza Hashemi
Abstract
Bank guarantees are one of the most effective international instruments used incommercial contracts. Without bank guarantees, it would not be possible to fulfilobligations of the parties or the parties would encounter potential risks. Bankguarantees provide the beneficiary with a certain and immediate ...
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Bank guarantees are one of the most effective international instruments used incommercial contracts. Without bank guarantees, it would not be possible to fulfilobligations of the parties or the parties would encounter potential risks. Bankguarantees provide the beneficiary with a certain and immediate payment of awealthy sponsor in his country. The only exception to the principle of independenceis the issue of fraud, which has universally been recognised. This exception couldprevent claim and payment to beneficiaries. The question addressed in this articleis: What are the international rules on the issue of fraud in bank guarantees and whatmeasures have been taken by the UN Convention on Independent Guarantees andCredit Guarantees ? International Chamber of Commerce has been silent on thisissue or at least has not dealt with it expressly . However, the aforementionedConvention is the only document that contains provisions regarding fraud, eventhough it does not provide an exhaustive list and exact details. It neverthelessprovides a useful guidance for courts.
Private Law
mahdi shahabi
Abstract
Louis Le Fur's thought should be seen as a symbol of the interaction of metaphysics and reality; The duality that finds another interpretation in Le Fur's language, that is, natural law and objective law. The requirement of the mentioned interaction is not to consider Le Fur's philosophical framework ...
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Louis Le Fur's thought should be seen as a symbol of the interaction of metaphysics and reality; The duality that finds another interpretation in Le Fur's language, that is, natural law and objective law. The requirement of the mentioned interaction is not to consider Le Fur's philosophical framework as rationalism or Kantian philosophy and to consider Aristotelian philosophy as the origin of Le Fur's thought. However, Le Fur's natural law seems to have taken its validity from the traditional rationality that is based on tainted wisdom; A rationality that can be considered as its inherent spiritual or spiritual illumination. Therefore, Le Fur's enlightenment should not be considered an experimental enlightenment, like the enlightenment of philosophers such as Petrazyski and GényIn his analysis of the basis of the validity of his natural law, Le Fur is so close to his contemporary traditionalists such as René Guénon that he states that man is the God`s Caliph. Any legal concept that does not consider the eternal soul of man in his analysis cannot be evaluated as a correct perception.However, unlike the same traditionalists, Le Fur does not give a role to revelation in the objectification of the concept of natural law and justice. He does not evaluate the transition from Catholic jurisprudence to Protestantism negatively. Le Fur's concern is the synthesis of metaphysics and reality.But, without a doubt, what Le Fur means by this metaphysics is not human metaphysics; rather it considers divine metaphysics. Therefore, one should not think about the transition from Catholic jurisprudence to Protestantism. We know that traditionalists like Guénon consider the transition from Catholic jurisprudence to Protestantism as the meaning of passing traditional rationality.Nevertheless, his belonging to perennial wisdom has not hindered his empirical methodological approach to the compatibility of natural law with the nature of things and has not led to Shari'a voluntarism as an all-round ideology.Apparently, it remains at the level of mere general ideology, and this generality, in addition to opening the way for Le Fur's experimental method, also leaves unanswered the fundamental question that when the divine legislative will has no role in detailing the perennial law, so in which direction perennial wisdom is supposed to guide a person?It seems that Aristotelian philosophy has clarified its task concerning perennial wisdom. By removing the divine legislative will, Aristotle practically accepts that evolution should be left to the hands of history and the passage of time; the approach and result that Le Fur has not been able to get rid of.The fact is that Le Fur's type of law is a symbol of evolutionary experience, and from this point of view, its basis should be sought in the nature of Aristotelian objects. It seems that these types of law fulfill the function of objectifying or objectifying traditional rationality. It plays a role in Le Fur's legal thinking. It is clear that such a position for the nature of things, in order to interact and synthesize with traditional rationality, is not acceptable in traditionalist thought such as Guénon.Interestingly, by adopting the experimental method, Le Fur also comes to the conclusion that there is superhuman rationality that guides the world; and that man is not only the mind; it does not just matter. Man is both material and mental, and for Le Fur, it is surprising why the experimental method of positivists is unable to see and verify such realities.Despite this, the result of the synthesis of Le Fur's metaphysics and empirical reality is very limited, and practically, perennial Le Fur's wisdom, from the perspective of a humanist view, will not seek a different interpretation of the nature of Aristotelian objects. In other words, by relying on it, you cannot be a watcher of Catholic jurisprudence. But, on the one hand, it is possible to avoid falling into the trap of the empirical illumination of philosophers like Petrazyski;The drawback of empirical illumination is that it does not open an evolutionary path for the transition from Sien to Sollen. There is a possibility that he may regress and sometimes evaluate slavery as favorable; it is difficult to separate it from public opinion and it leads nowhere.On the other hand, relying on Le Fur's thought, it is possible to establish a philosophy of law in which law is neither a captive of pure materialism nor is it caught in Kant's subjectivism, which synthesizes the hierarchical system of law with empirical reality does not wantA result can also be achieved in the framework of the nature of Aristotelian objects. According to its evolutionary approach, Aristotelian philosophy cannot deny the law of Le Fur and accepts it. Le Fur's thought in the field of contract does not have a different result compared to Aristotelian philosophy. In Le Fur's contract, like the Aristotelian contract, the principle of the sovereignty of the will is not the rule in order to result in a practically positivist justice.
Laya Joneidi; Sepideh Razi
Abstract
In Iranian legal system, several acts have been enacted on the liability of foreign state for violating international law. Some of these acts have been enacted in order to protect the rights of the Iranian people and diplomatic support, and others in order to make counter measure against violation of ...
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In Iranian legal system, several acts have been enacted on the liability of foreign state for violating international law. Some of these acts have been enacted in order to protect the rights of the Iranian people and diplomatic support, and others in order to make counter measure against violation of immunity from jurisdiction and enforcement by a foreign state, as well as to determine the competent court to file lawsuits and similar issues. In this study, Iran's legislative performance in the mentioned issues with an analytical approach, in order to identify Iran's legal capacity regarding the responsibility of the foreign state is examined and then the gaps in the mentioned laws are discussed. A study of the various acts in this field shows that these acts are often written without proper notice to sufficient accuracy, expert opinions and principles of legislation. Therefore, it is needed to consolidate these acts, which mainly have the same subjects, into a coherent act with sufficient scrutiny in writing articles, considering international law, and without mere quick reactionary approach to foreign state’s measures.
Mohammad Isaeei Tafreshi; Morteza Shahbazinia; Habib Ramezani Akerdi
Abstract
In dealing with the bankruptcy regime, the legislator requires legal entities tomanage this regime for specific purposes. One of these legal entities that plays asignificant role is “automatic stay”. This legal entity is designed to preventindividual action of creditors. Different factors ...
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In dealing with the bankruptcy regime, the legislator requires legal entities tomanage this regime for specific purposes. One of these legal entities that plays asignificant role is “automatic stay”. This legal entity is designed to preventindividual action of creditors. Different factors play a role in the efficiency andinefficiency of the automatic stay. The main reasons for efficiency are increasingthe value of property of the bankrupt and reducing costs. The main cause ofinefficiency is the redistribution of wealth. In Iranian law, a limited scope andthe lack of enforcement of the automatic stay are regarded as main reasons forinefficiency of this legal entity. In the United States, the scope of automatic stayis wider than Iranian law, and this legal entity can be enforced in the former.Theautomatic stay is unavoidable in Iranian law, whereas there are different viewsin U.S. law in this regard.
Ali Rezaee; Mazkour Salehi
Abstract
Anti-suit injunction is an order issued by a court or arbitral tribunal that prevents an opposing party to lodge or pursue a dispute before a national court in breach of that agreement. Considering the importance of this injunction in support of the arbitration, the status of injunction issued by arbitral ...
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Anti-suit injunction is an order issued by a court or arbitral tribunal that prevents an opposing party to lodge or pursue a dispute before a national court in breach of that agreement. Considering the importance of this injunction in support of the arbitration, the status of injunction issued by arbitral tribunals in international arbitration shall be reviewed. However, since the jurisdiction of the tribunal is subject to the agreement between the parties, there are serious challenges regarding the authority and grounds for issuing this order by arbitral tribunals. The results of the research indicates that, contrary to the anti-suit injunctions issued by national courts, the injunctions issued by arbitral tribunals in international commercial arbitrations are becoming an acceptable procedure. These injunctions are based on arbitration agreements, international and national laws and regulations regarding arbitration. Since the origin of the Anti-Suit Injunction is common law legal system, Iranian legal system and its precedent are alien to such injunction. In addition, the function of Anti-Suit Injunction in Iranian law in the form of provisional measure cannot be justified. Anti-suit injunctions issued by arbitral tribunals have many advantages in the arbitration process such as flexibility, confidentiality, impartiality and the speed of arbitral proceedings.
Javad Sarkhosh; Sohila dibafar
Abstract
Family Protection Act, based on Islamic Law, was adopted in 2012. It states that taking part in the arbitration sessions before granting divorce is compulsory for the purpose of the conciliation and settlement between them and protecting the family that is on the verge of separation. The question is: ...
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Family Protection Act, based on Islamic Law, was adopted in 2012. It states that taking part in the arbitration sessions before granting divorce is compulsory for the purpose of the conciliation and settlement between them and protecting the family that is on the verge of separation. The question is: What is the relational in the religion and the law behind this compulsory session? Can it be defined as a real arbitration? Analyzing features of arbitration, especially the role of those who act as arbitrators, the above-mentioned tact is in the form and shape of arbitration with the essence of mediation. The assigned or appointed persons by the spouses or family courts must just attempt to settle the dispute by conciliating between them. By the mediation, the spouses can agree to settle their dispute through the conciliation. Thus, arbitrators consider the Family Protection Act, and just present their consultancy opinions to the family court without proceeding in accordance with the law and legal rules to the merit of the divorce and without making an enforceable award.
Heshmatollah Shahbazi; Ebrahim Taghizaadeh; Morteza Shahbazinia
Abstract
The influence of human rights in private law or in other word constitutionalization of private law is relatively a new debate in legal reasoning that constitute the subject of this research. Applying human rights in private law depends on context, legislator and judge, and reasoning method. The reaction ...
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The influence of human rights in private law or in other word constitutionalization of private law is relatively a new debate in legal reasoning that constitute the subject of this research. Applying human rights in private law depends on context, legislator and judge, and reasoning method. The reaction of different legal systems in this matter is not the same. Direct application, indirect application, judicial application, and non-application is brief of these reactions. Legal system of Iran is capable for direct application of human rights in private law. Although the courts do not use this capacity. Due to distributive justice and for modification of freedom of contract principle, we can apply the human rights and fundamental rights capacity. The human dignity is the concept that enforceable in evaluation of contractual terms and unwaivable [S1] rights so that infringe of human right can be regarded as opposite of public policy. In this research the methods and contexts of constitutionalization of private law has been examined. [S1]این کلمه کلا در فرهنگ لغت وجود ندارد. اگر کلمه تخصصی است که حفظ شود و گرنه با معادلی بهتر جایگزین گردد.
Private Law
iraj babaei
Abstract
Despite the existence of many rules regarding liability for causing damage to another in Islamic law and the extensive fiqh doctrine in this regard, it has not developed into an independent branch of legal studies and laws within Islamic law. However, the law of Torts is recognized as an original branch ...
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Despite the existence of many rules regarding liability for causing damage to another in Islamic law and the extensive fiqh doctrine in this regard, it has not developed into an independent branch of legal studies and laws within Islamic law. However, the law of Torts is recognized as an original branch of law in modern Iranian law. Influenced by modern French and Roman-German tort law doctrine, Iranian legal doctrine has established general rules and theories of tort law that can be applied to all aspects of causing harm to others. This approach differs from the approach taken by faqihs (Islamic jurists) towards torts, which form the basis of modern Iranian law. According to the Constitution of the Islamic Republic of Iran, all rules of Iranian law should be in accordance with Shiite fiqh. Shiite fiqh applies different principles to different torts, and there is no general rule or principle applicable to all torts. Due to the influence and supreme position of fiqh in modern Iranian law, these differing approaches have led to significant misunderstandings in modern Iranian Tort law. It seems that the most suitable and efficient approach for Iranian tort doctrine is to move away from the idea of unified tort law and consider this area of law as diverse, where different general rules are applied based on the nature of the specific tort.In fact, according to modern Iranian doctrine, all torts are based on three elements: Damage, Act of harm to another, and Causation. The doctrine discusses each element independently. Regarding Damage, the doctrine presents different types of damages: physical damage to property, financial and economic losses, personal injury, moral damage, etc. If the damage suffered by the claimant is recognized as reparable under tort law, the element of damage is satisfied. The doctrine then considers different ways in which civil liability can be established, such as negligence, personal acts, vicarious liability, traffic accidents, malpractice, and more. Finally, the doctrine addresses causation as a necessary condition for civil liability. When all three elements and their respective conditions discussed in separate parts are met, there will be a liability to compensate the victim by making payment for the damages. The doctrine then proceeds to explain how damages should be compensated. Generally, the compensation principle is presented as a golden rule applicable to all forms and types of damages: the tortfeasor is liable to fully compensate for the damage suffered by the victim without making any profit.Considering tort law as a unified concept, the argument about the foundation of tort law (Negligence or Strict liability) has been presented as a unique principle applicable to all kinds of torts, damages, and acts that engage civil liability. However, this approach does not align with actual Iranian law based on Shiite fiqh rules. The conditions and effects of tort law differ depending on the nature of the damage, and the compensation rules vary accordingly. For instance, in cases of damage to properties, civil liability is established when physical damage to property is caused by a tortfeasor, regardless of whether negligence was involved or not. In this area, there is no distinction between intentional and unintentional harmful acts, and strict liability is recognized as the foundation of tort law. On the other hand, the conditions for pure economic or financial loss are different. These damages are not considered as engaging civil liability unless they are caused by a criminal act (intentional malicious act). The compensation principle applies to all kinds of property damages.The conditions for engaging civil liability for personal injury differ from those for property damage. Civil liability to compensate the victim with monetary payment is primarily established for unintentional acts. In cases of intentional harm, there is no civil liability, and the tortfeasor is subject to retaliation as a crime. When civil liability is recognized, similar to property damages, torts are based on strict liability. The amount of damages for any bodily injury is determined by law, and the compensation principle does not apply in this field.Regarding moral damages, the conditions for civil liability are different from other types of damages. Traditional law did not anticipate civil liability for moral damages, considering harmful acts as crimes punishable by appropriate punishment. However, in recent criminal procedure laws, civil liability alongside criminal punishment has been recognized in relation to moral damages. Although civil liability for moral damages is provided for by law, it appears that the nature of liability remains punitive for the tortfeasor. The deterrence aspect of civil liability is essential in determining damages, with the amount of money determined primarily based on the intention and malice of the harmful act and its impact on the victim. Consequently, the compensation principle does not apply in cases of moral damages, and damages are determined more by considering the circumstances of the harmful act rather than solely focusing on the harm itself.The conditions, elements, and effects of other areas of tort law such as Nuisance and Trespass differ significantly from those mentioned above, as discussed in both Fiqh's (Islamic jurisprudence) and legal Iranian doctrine.Considering all these differing conditions, elements, and remedies in governing Iranian Tort law, it becomes evident that there is no singular logic of tort in Iran; instead, there are multiple torts. The modern doctrine that follows a unified logic and approach to torts makes a significant mistake in understanding the rule of law and often leads to uncomfortable suggestions for its development. A better way to understand the applicable rules and propose new ones is to study Iranian tort law according to a multiple theory that aligns more with traditional Iranian law and Shiite fiqh rather than following the logic of tort law in French civil law or Roman-German approaches.
Morteza Hajipour
Mohammad Mahdi Hajian; Mitra Moosavi
Abstract
Take-or-Pay clause (T-o-P), as an essential element of long-term off-takeand supply contracts in energy sector, particularly in Gas SalesAgreements.The philosophy of T-o-P clause is based on the importance ofthe fact that the seller will receive a level of revenue guaranteed under theagreement that covers ...
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Take-or-Pay clause (T-o-P), as an essential element of long-term off-takeand supply contracts in energy sector, particularly in Gas SalesAgreements.The philosophy of T-o-P clause is based on the importance ofthe fact that the seller will receive a level of revenue guaranteed under theagreement that covers massive financial commitments and debts arising fromthe upstream project. Although T-o-P clause is frequently considered inGSAs, the validity and applicability of this condition is subject to controversyamong different legal systems. Some lawyers have treated this provision as apenalty clause which is invalid and unenforceable. However, others regard itas a valid and enforceable liquidated damage clause.This paper first focuses on uncertainties and ambiguities regarding the legalstatus of take-or-pay provision, particularly in English legal system. Then, itdiscusses the issue by considering the fundamentals of Islamic contract rulesand jurisprudence, particularly Iranian legal system reflected in the IranianCivil Code
Sattar Zarkalam
Abstract
Without any doubt, France is the first country to have achieved the collective management of creators and performers' literary and artistic rights. The management of artistic and literary property right is administrated within collective management civil companies (receipt and distribution companies); ...
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Without any doubt, France is the first country to have achieved the collective management of creators and performers' literary and artistic rights. The management of artistic and literary property right is administrated within collective management civil companies (receipt and distribution companies); however, these companies are inspired by some rules of business companies. The structure of collective management companies in French law has some properties compared to other civil companies. The role of right management can be described in one sentence as "the optimized right management which the authors and other literary and artistic law holders benefit from". This role is expressed through three different contractual relations; the relation between the collective management company and its members, the relation between these companies and the users, and the relation between the collective management companies together. In some cases, the transfer of French law's experiences to Iran's law can be considered useful with regard to the characteristics of the domestic law and cultural needs.
S.M.sadegh Tabatabai; Zahra Akrami
Volume 2, Issue 5 , February 2014, , Pages 83-94
Abstract
AbstractOne of the controversial issues among lawyers in termination of obligation andits performance is legal nature of fulfillment of non-object of obligation.Although virtually all jurisprudents agree that this kind of fulfillment needscreditor and debtor's consent, some merely describe it as an ownership ...
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AbstractOne of the controversial issues among lawyers in termination of obligation andits performance is legal nature of fulfillment of non-object of obligation.Although virtually all jurisprudents agree that this kind of fulfillment needscreditor and debtor's consent, some merely describe it as an ownership contractand some others define it as novation as a kind of object changing. Determiningthe legal nature of paying the object which is different from the issue ofobligation, does not merely have analytical and theoretical impacts, but involvesthe effects of the difference between sale and exchange, difference between saleand unspecified contract, difference between novation etc. Those are practicalimpacts of this discussion. In other words, the main aim of this debate is to dealwith the question whether in an agreement such as novation, the guarantees ofdebt become abolished or for the sake of the contractual nature of it, some of theoptions will be applicable. The aim of this study therefore is to present suchviews along with a brief critical analysis.
naghmeh javadpour; HAMIDREZA OLOUMI YAZDI; SEYED NASROLLAH EBRAHIMI
Abstract
Med-Arb is one of the hybrid and integrated dispute settlement mechanisms which embodies flexibility, non-judicial and negotiate-oriented benefits of "mediation" and finality advantage of "arbitration" simultaneously and in a single process. In this article, med-arb nature is identified through a comprehensive ...
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Med-Arb is one of the hybrid and integrated dispute settlement mechanisms which embodies flexibility, non-judicial and negotiate-oriented benefits of "mediation" and finality advantage of "arbitration" simultaneously and in a single process. In this article, med-arb nature is identified through a comprehensive comparative legal study including major legal systems and procedural rules of leading dispute settlement institutions. Opportunities and challenges of adopting med-arb in terms of legal, economic and managerial perspectives is analyzed. Although this method provides parties with a huge flexibility, control over the process and great efficiency (in relation to other dispute settlement mechanisms), some serious challenges regarding enforcement of awards in international contracts exist. In light of International Commercial Arbitration Act of Iran and Civil Procedure Code (regarding domestic arbitration rules), in case that parties reach agreement in the first phase (mediation), it is not possible that mediator only serve as arbitrator so that be powered to change the mediation agreement into an arbitral award. However, if parties fail to reach agreement in the first phase and arbitration initiates accordingly, their settlement in this stage can be regarded as consent award and be subject to benefits of enforcement of international arbitration awards.
Mohammad Reza Paseban; Mojtaba Jahanian
Volume 2, Issue 4 , December 2013, , Pages 85-108
Abstract
AbstractDerivative action is an action filed by shareholders against corporatedirectors in order to recover corporate’s rights. This mechanism is set up tohave the directors answerable for their failure in carrying out their duties.Prior to the CA 2006, Foss v. Horbottle rule deprived shareholders ...
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AbstractDerivative action is an action filed by shareholders against corporatedirectors in order to recover corporate’s rights. This mechanism is set up tohave the directors answerable for their failure in carrying out their duties.Prior to the CA 2006, Foss v. Horbottle rule deprived shareholders of takingany action against directors but in exceptional cases. Acknowledging theright of filing derivative action and how to apply it, as shareholders’ rights,for the first time the Act 2006 extended the circumstances in which such aright may be claimed.In Iranian Law, section 276 of the Amendment to the Commercial Act1347 refers to possibility of filing a derivative action. The same is providedvastly in the Bill 1384 in section 473. Regarding new development of legalsystems in this area particularly in English Law, providing new provisionsseems to be a necessity.
hassan mohseni
Abstract
Patrimonial Condemnation Enforcement Procedure Act, undoubtedly is one of most important positive laws that since Constitution Revolution, was under consideration of legislator, justice, parties and lawyers. During times and today’s needs and development of peoples relation in society have necessitate ...
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Patrimonial Condemnation Enforcement Procedure Act, undoubtedly is one of most important positive laws that since Constitution Revolution, was under consideration of legislator, justice, parties and lawyers. During times and today’s needs and development of peoples relation in society have necessitate the revision to Patrimonial Condemnation Enforcement Procedure Act. A work that have been done and resulted in 2015. Legislator in accordance of effective enforcement have endeavored to take useful reformations in our former act and it seems that he was successful in many this work. Therefore, novelty of many institutions and notions besides of insufficiency and ambiguity of many articles of this act have causes difficulties for judges, parties and lawyers in interpretation and comprehension of its rules. Many question posed in this article about property research and principle of observing the law in that research, imprisonment of debtor, procedure of insolvency, insolvency of moral identity, default in insolvency, the motivation of transferring the property for non-paying the debt, scope and transitional law. In a general evaluation, we can say that new act is an acceptable act and have observed many requirements of effective enforcement.
Mehdi Zahedi; Amid mohammadi
Abstract
Tourism is the third largest generator of jobs and investment industry after oil and automotive industries. Tourism industry is among new domains which is being supported through the body of intellectual property rights in terms of literary and artistic property as well as industrial property. Nowadays, ...
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Tourism is the third largest generator of jobs and investment industry after oil and automotive industries. Tourism industry is among new domains which is being supported through the body of intellectual property rights in terms of literary and artistic property as well as industrial property. Nowadays, various issues relating to intellectual property in the tourism industry can develop this sector and attract more tourists. Therefore, considering these issues as traditional cultural expression (folklore), architecture works, geographical indications and trademarks has been very common and popular. Like other industries, tourism has related goods and services. It also has a lot of major and various factors influencing this industry. These factors might be based on attractiveness and competitiveness. (Such as brands tourist destinations). This paper attempts to answer these questions: What is the role of intellectual property rights in protection and competitiveness of the tourism industry? Can this legal regime provide opportunities and adequate protection measures to increase productivity and fair competition for stakeholders in the industry? To answer these questions, this article analyses the capacities of the existing intellectual property system in the framework of folklore, architecture works, geographical indication, and collective marks in order to protecting artistic and cultural tourism, agricultural (rural) tourism and health tourism as well as development of tourism destination brand.
Mohammadreza Pasban; SeyedHadi Farokhi; Ahmad BeygiaHabibabadi
Abstract
Equity firms have been emerging economically more than other firms in the legal and economic areas. Given the fact that the majority of the people in the society can be regarded as the members of these firms in various ways, they have enjoyed great satisfaction with the majority of the people. The present ...
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Equity firms have been emerging economically more than other firms in the legal and economic areas. Given the fact that the majority of the people in the society can be regarded as the members of these firms in various ways, they have enjoyed great satisfaction with the majority of the people. The present study aims to evaluate the minority shareholder's rights in the context of the decomposition of joint stock firms, as well as the related effects and judgments in the legal system of Iran and England. The study of the two legal systems indicates that, unlike English law, there is no specific provision regarding the decomposition of commercial enterprises, especially non-governmental organizations. In addition, based on English law, there are appropriate provisions for protecting minority shareholders, particularly in the case of corporate analysis. However, as far as Iran law is concerned, there are a few provisions in favor of a minority shareholder and the necessary support for a minority shareholder has been considered in the trade bill. Therefore, comparing the laws and regulations of the two countries can lead to many challenges and ambiguities in mergers and divisions of joint stock companies
Reza Shokoohizadeh
Abstract
Interest is one of the conditions of bring an action in court. This condition is not limited to first instqnce but is also necessary in appeal. But the question that which party holds the right of appeal is not an easy one to answer. Para. a of Art. 335 Civil Procedure Act grants the appeal right to ...
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Interest is one of the conditions of bring an action in court. This condition is not limited to first instqnce but is also necessary in appeal. But the question that which party holds the right of appeal is not an easy one to answer. Para. a of Art. 335 Civil Procedure Act grants the appeal right to all parties of first instance. But the appealing of the winner party is not in accordance with the principles of law of civil procedure. In French Law, the Succombance Principle determines in which cases the parties could appeal the review of the judgment of first court. There are presumptions that specify the cases of appeal, condemnation in logic of the judgment and condemnation to compensation of costs of proceedings. But these presumptions are not inviolable. Consequently, it is necessary to study the application of succombance rule in deferent cases. In this regard, the application of succombance rule in respect of court judgment, parties and subject of the case would be studied in this Article. The research of French lawyers would be one of the sources of finding the solutions of cases of appeals in Iranian Law.
