Private Law
seyyed Mohammad Sadegh Tabatabaei; Mohammad Amini; mahmoud rastegari
Abstract
If the guarantee contract is separated in a general division into the guarantee of transfer of Dhimmah and the guarantee as a tool to give credit to the obligee, the guarantee which is customary in commercial documents is the second part of the above division. The holder of the commercial document wants ...
Read More
If the guarantee contract is separated in a general division into the guarantee of transfer of Dhimmah and the guarantee as a tool to give credit to the obligee, the guarantee which is customary in commercial documents is the second part of the above division. The holder of the commercial document wants to introduce a guarantor while remaining the obligation and responsibility of the person who is the guarantor, in order to increase the strength and validity of the document and to raise his collective conscience in paying the amount of the commercial document. Therefore, the main question of the current research is that in the guarantee of commercial documents, is it engaged in the Dhimmah or responsibility? What effects will this detail have on the extent of the owner's rights? After researching and studying the works of jurists and jurists, and using a descriptive-analytical method, the authors came to the conclusion that in the guarantee of commercial documents, unlike the civil guarantee, the obligation to pay the amount of the document is placed on the guarantor, and such a view is also based on It increases the credibility of the commercial document and affects the rights of the holder.According to the nature of the issue of guarantee in commercial documents, i.e. the substitution of responsibility for the Dhimmah, after the occurrence of the guarantee, the guarantor is independently responsible for paying the amount to the holder of the commercial document without his obligation being subordinate to the Dhimmah of the main debtor.After the conclusion of the guarantee in the commercial document, if it is determined that the obligation of the main debtor was invalid during the issuance or transfer of the commercial document due to reasons such as forgery of the signature or lack of capacity, and for this reason, the debtor on the date of the document, because of the forgery his signature or lack of legal capacity, raises objections and refuses to pay, it must be said that regarding fake signature and lack of legal capacity, there is no discussion about the obligations of the holder; Rather, the discussion is about the commitment itself, because the commitment is the guarantor of an independent commitment. The subordination of guarantor's guarantee in commercial documents is not related to the principle of the obligation itself and it is related to the duties and legal conditions of the demand, which if the holder of the commercial document does not comply with the formalities of the demand for the document's payment within the specified period, he cannot, in terms of the commercial document, refer to the guarantor, but the fault of the holder has nothing to do with the independence of the guarantor's obligation in front of the principal debtor. In fact, in this research, guarantee is in a sense other than the concept of transfer and attachment. Because in the two concepts of transferring or attachment, the subject of the guarantee is the Dhimmah and a function of the debtor's Dhimmah, but in the guarantee of commercial documents, what is important is the independence of the guarantor's responsibility in dealing with the holder of the commercial document.The limits of the guarantor's responsibility (which include: the guarantor's relationship with the debtor; the relationship of multiple guarantors with the debtor; the relationship between multiple guarantors; Condition of mortgaged property; Collapse of debt obligation; Invalidation of debtor's obligation; Death of guarantor in relation to holder), the scope of the obligations of the officials of the commercial document towards the guarantor, the scope of the law (Statute) governing commercial documents, and the scope of defenses that cannot be cited against the guarantor (which in part consists of (1) irrefutable objections related to the will, which include the objection of forging the debtor's signature; Debtor's lack of legal capacity; forgery in the document after the signature of the debtor and guarantor; The problem of signing the document by the debtor's representative lacks authority, and in another part, it consists of (2) objections that cannot be relied on other than the will, that is, the guarantor's substitution of the debtor, as well as compliance with the deadlines for protesting and filing a lawsuit) will be the influencing factors in this connection
Private Law
Jafar Shahand; Ebrahim TaghiZadeh; Abolghasem Naghibi
Abstract
Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation ...
Read More
Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation considering the pure obedience of the legislator in enacting Articles 301 to 327 of the civil law, accepting the well-known opinion of the jurists in a general or general manner, this extremist view has been seriously criticized by the commentators of the civil law. And basically, the application of the rules of usurpation to non-aggression, in which the basis of possession and domination is based on ignorance of truth and error and lack of malice, is in clear opposition to the principles and rules of justice and fairness and the requirement of the principle innocence. Therefore, in this article an attempt has been made with the help of scattered jurisprudential and legal opinions and related legal materials in order to modify the popular opinion and explain the responsibility of non-aggressors based on the use of other sources of coercive guarantee take a step.
sayyed Mohammad Razavi; Sayyed Ali Razavi
Volume 8, Issue 30 , June 2020, , Pages 110-130
Abstract
Comparative commercial advertising, which is based on comparison of features and characteristics of competitors’ goods and services, is one of the most popular ways of advertising and an important means of protection consumers’ rights. A comparative advertising is legitimate in light of principles ...
Read More
Comparative commercial advertising, which is based on comparison of features and characteristics of competitors’ goods and services, is one of the most popular ways of advertising and an important means of protection consumers’ rights. A comparative advertising is legitimate in light of principles such as co-operation and piety, forbidding injustice and keeping the trust and it will not incur responsibility for the advertiser. If the conditions are not complied with and damages are brought to competitors, they may file a lawsuit against the advertiser’s unfair competition. Differences such as specific definitions of negligence in some legal systems, and quality of proof of harm, distinguish an unfair competition from a general civil liability dispute. The unfair competition lawsuit in a court of law may lead to the issuance of a warrant for compensation in cash, an order to stop broadcasting advertising, the insertion of a ruling in the press, or a correctional advertisement to compensate the damage sustained to the competitor's reputation. In this article, some international treaties and the laws of some jurisdictions have been discussed and it has been investigated how the law is enforced and implemented in Iranian law.
Seyed Ghasem Zamani; vahid bazzar
Abstract
In international investment law, the investor's negligence is considered to be a factor which affects the determination the amount of reparation. Thus, if a causal relationship is established between the investor's conduct and the damage, the amount of claimable damage will be reduced in accordance with ...
Read More
In international investment law, the investor's negligence is considered to be a factor which affects the determination the amount of reparation. Thus, if a causal relationship is established between the investor's conduct and the damage, the amount of claimable damage will be reduced in accordance with the role of the investor in the damage. This rule, which can always be used against the respondent, is concerned with the determination of the amount of reparation after assuming responsibility. The duty to mitigation as one of the aspects of "injured party’s negligence" refers to a situation in which an investor refuses to prevent extension of damage after creation of damage and despite its ability. The proof of the investor's negligence is, contrary to the current procedures, with the defendant. It does not affect the jurisdiction of the arbitration tribunal or the responsibility of the host state and can only lead to a reduction in the amount of reparation. Third party participation or force majeure in creation of the damage cannot be the basis for applying the "injured party’s negligence" rule. This is also the case when the international community is considered to be an injured party or when the investor's negligence is the sole cause of damage.
