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.
Private Law
Nahid Parsa
Abstract
Traditionally, the driver of the car is responsible for the damages caused by the accident. In self-driving and semi-autonomous cars, the term driver has either lost its meaning or has been diluted. The purpose of this article is to examine the civil responsibility of the user and the car against the ...
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Traditionally, the driver of the car is responsible for the damages caused by the accident. In self-driving and semi-autonomous cars, the term driver has either lost its meaning or has been diluted. The purpose of this article is to examine the civil responsibility of the user and the car against the damages caused by self-driving cars and to answer the question that in compensating for the damages caused by self-driving cars, should the traditional driver still be held responsible or is the virtual driver responsible? Is it possible to impose civil liability on self-driving cars, independent of the driver? Who is responsible in cases where the self-driving car acts based on the theory of deep learning outside the framework of the instructions? This article proceeds with a descriptive-analytical approach and by examining and pondering the rules of civil liability, and after analyzing the issue, it concludes that the driver alone cannot be held responsible in fully automatic levels, and the existing laws are not sufficient for the rights of the victims of driving accidents of self-driving cars, especially in fully automatic levels, and there is a need to amend and change the current laws. One of the novel points of the article is the examination of the combined responsibility of the traditional driver and the virtual driver. It also separates the responsibility of the driver in semi-autonomous and fully autonomous levels and examines the basis of each.In recent years, the technological innovations of the on-road vehicle industry have been accompanied by dramatic advances in self-driving cars. Automated vehicles offer a host of opportunities for safer roads, reduced travel times, more personalized services and energy efficiency. Of course, there are obstacles that can prevent the spread of self-driving cars. In particular, some limitations have been identified. One of the problems is the current legal framework for road transport, which does not easily accommodate the situation where the car is an autonomous system and lacks a comprehensive and uniform approach to autonomous vehicles.In Iran, the first phase of the self-driving car project was put into operation in 2014. The following year, the final product was successfully tested. However, following this incident, Naja traffic police chief banned the use of self-driving cars due to the lack of relevant laws and the lack of identification of the person responsible for the possible accidents of these cars. Also, in article 7 of the plan for organizing the automobile industry approved in 2017, it was mentioned to create the necessary platforms for the introduction of new technologies, but this plan has remained at the level of the plan so far. Self-driving cars significantly emphasize the issue of responsibility. There are three main types of liability related to road traffic: civil liability (compensation for damages caused to third parties), criminal liability (being liable for personal injury) and administrative liability (traffic rules). However, self-driving cars present a whole new challenge from a liability perspective. Undoubtedly, liability arising from traffic accidents is the most important part of civil liability. In Iranian law, the civil responsibility of the owner of a land motor vehicle is in the form of a requirement to obtain compulsory third party insurance. Unfortunately, wherever there is a discussion of civil liability in traffic accidents, it has always been confused with insurance issues, while, only, the effects of civil liability are related to the effects of insurance. In the correct situation, the insurance law should be different from the issues of civil liability, rather than looking for the issue of civil liability among insurance rules. In this article, only issues related to how to fulfill the civil responsibility of users and self-driving cars are expressed, and the effects of responsibility are not included in this article.The emergence of self-driving cars in road traffic on a larger scale will create many problems in various fields, including law. In case of loss of health, life or other injuries, it should be determined who will be responsible? The user, the manufacturer of such a car or its owner? The US Department of Transportation estimates that approximately 94% of accidents on American roads are caused by human error.If the legal framework does not include any specific requirements for self-driving vehicles, the owner, driver and manufacturer will be subject to the same legal requirements as traditional cars. On the other hand, if the legal framework introduces specific regulations for autonomous vehicles, the traditional requirements of all three mentioned stakeholders may change. Most of the existing regulations affect the production of self-driving cars. However, regulatory changes may also affect owners and drivers. For example, a special driver's license may be introduced for self-driving vehicles. or that the insurance requirements for the owner of an autonomous vehicle be modified in relation to conventional vehicles. Legal solutions require consideration of the degree of responsibility that can be placed on the driver of the self-driving car and the product liability of the self-driving car, although some authors may treat liability homogeneously, for example, some believe that the negligence standard is used in the driverless car as well. Determining how much liability can be held by the human driver or the car manufacturer will be a major challenge in the courts, as the proliferation of self-driving vehicles increases accident rates. Laws on car ownership, road traffic, criminal liability, security, privacy protection and civil liability must be changed. Accelerating regulatory changes becomes necessary, especially as semi-autonomous vehicles are already on the road and involved in traffic accidents.In the US, there are approximately twenty-nine states that have driverless car laws that address self-driving cars on the road — states like Florida that allow self-driving cars on public roads. allows driving, or Arizona that a negligent driver may be liable for death in a self-driving car accident. However, a common theme among states like Michigan and Nevada is limiting manufacturer liability for self-driving car accidents.In 2018, a bicyclist collided with an Uber self-driving car in Arizona, sparking questions about how civil liability applies in self-driving car accidents. What happens when a self-driving vehicle crashes into a pedestrian or another driver? Is it the fault of the driver who did not control the car from the beginning? Is this artificial intelligence that caused the accident? Is it the car manufacturer that assembled and supplied the car in a defective manner and is responsible? When is the driver allowed to take his hands completely off the steering wheel and when is he allowed to control the car? Should there be limits to what he can do in the car? Additional questions arise from the interaction between driverless and manned cars. Unlike the previous sources, which have only expressed the civil responsibility of the user, without distinguishing between the semi-autonomous levels (where the driver generally maintains his traditional concept) and the fully autonomous level (where the driver loses his traditional concept completely). In this article, these levels are separated and the civil responsibility of the driver is examined at each level, and some sources are satisfied only with a mechanism for compensation without determining the responsibility in self-driving accidents.
Private Law
Seyyed Hasan Hosseini Moghaddam; Setareh Ayoubi; Mehdi Taleghan Ghaffari
Abstract
Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the ...
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Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the words "I agree" or something similar. The number of consumers who use online platforms to fulfill their shopping needs has increased, and online stores have responsibilities for the intermediary role and the platform they provide for online buying and selling. From the legal point of view, two types of contractual or non-contractual responsibilities can be considered for these stores. Currently, these types of internet businesses are very popular among users, but in any case, we should look for a space to increase the security of this type of service and secure it, while taking care of and protecting consumer rights; because at present, with the very wide growth of this type of websites and online stores in different fields, we have witnessed the provision of services in the fields of sports, culture and leisure, electronic devices such as audio and visual devices, household, personal and office, real estate and land, vehicles, services and training, supplies and business, and even recruitment and employment or expression of job opportunities, etc. Since online platforms often act as "gateways to control and limit interactions in a system", the first question is whether online platforms and online stores can still be considered simply as intermediaries or should they be suppliers. The second question is whether platforms, as dominant channels in the market, may be held liable to their customers for infringements caused primarily by platform suppliers. Finally, the third question is whether there is a necessary connection between the first and second questions, namely that the platform operator may be held liable to its customers while it may not be treated as a mere intermediary, it may be treated as a supplier of goods and services provided by Platform Providers. Regarding the activity of online stores and their responsibility for their actions or others, it cannot be assumed that they are not absolutely responsible. The important issue is that in online shopping, the buyer makes a transaction that the seller has not seen closely, therefore, the necessity of such purchases, due to its nature, requires more support from the buyer. Because in such transactions, the buyer does not have detailed information about the seller of the goods, their credit, and the transaction, and the burden of the purchase risk is on the shoulders of the buyer. For this reason, as well as for the specialization of the subject and its great application and importance, in this research, an attempt will be made to examine the civil liability of online stores in the laws of Iran and the European Union. In relation to the foundations of civil responsibility of online stores, the theory of fault should be accepted as the main basis of civil responsibility in the laws of Iran and the European Union. In fact, where the providers of their Internet services and goods commit harmful acts, their liability is still based on fault. However, regarding the responsibility of internet sellers, you can also refer to other bases. The important thing about online stores is that concluding a sales contract through the internet in this category of stores should not create doubt that online stores are not subject to the general rules of civil liability. On the contrary, it should be stated that such stores are subject to general rules regarding civil liability rules; because buying or selling through online stores differs from traditional contracts in only a few specific cases; the most important of which is the method of concluding a contract. In other words, except for a few minor cases, in other cases, buying from an online store is not much different from buying from a real store; therefore, in relation to the civil liability of online stores, two types of liability can be realized, contractual and non-contractual liability. This type of separation in civil liability has been accepted both in the civil law of Iran and in the civil law of the European Union. On the other hand, in order to realize the civil liability of online stores in two areas of contractual and non-contractual liability, certain conditions are necessary. So in the field of contractual liability, the existence of a valid contract, breach of contract, and the existence of damage caused by the breach of contract are necessary, and in the field of non-contractual liability of the online store, the occurrence of loss, harmful action and the relationship of causation is necessary. It is suggested that cyberspace and internet stores are very suitable for millions of jobs. On the other hand, the Internet is a useful tool for marketing various services. In this regard, the creation of up-to-date and applicable laws as well as the amendment of existing laws are more important than ever. For this reason, it is suggested that, especially in Iranian law, laws in the field of online stores should be formulated in a specific way, and in these laws, the civil liability of this type of store should be determined clearly, inspired by the principles of civil responsibility and not limited to accepting one of the opinions and principles. Laws that, in addition to preventing the occurrence of computer crimes, should provide the opportunity for legal internet businesses to operate and grow, and this means that the laws are fair. In addition to the definition of platforms, the law that is developed for this purpose should include the providers and users of the internet platform for the purpose of electronic commerce, the law that is formulated for this purpose must state the criteria and criteria accepted in the legal analysis, of course, a mechanism for the purpose of floating the bon and the ability to generalize the criteria. Claims between parties (both platform, supplier, and user) should be considered. Also, the cases where the rules related to transactions do not respond to the new needs are written and govern the relations of the parties.
Mahdi Hasanzadeh
Abstract
The Code of Civil Procedure In Article 120 has announced: the plaintiff is liable for damages to the litigant as a result of garnishment in the event of a final judgment against him, and in Article 323, the liability of the applicant for an interim injunction is determined if the plaintiff fails to file ...
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The Code of Civil Procedure In Article 120 has announced: the plaintiff is liable for damages to the litigant as a result of garnishment in the event of a final judgment against him, and in Article 323, the liability of the applicant for an interim injunction is determined if the plaintiff fails to file a lawsuit within the legal deadline or the plaintiff's claim be rejected. But the plaintiff's liability in other cases of cancellation of the garnishment or order needs to be reviewed and analyzed. Examination of the subject shows that, in addition to the issuance of a verdict against the plaintiff, in cases of issuance of a final lawsuit and failure to file a lawsuit within the deadline and termination of the garnishment appointment due to protest, fault and liability of the plaintiff is proven. However, in cases of cancellation of the garnishment or order due to rising up the cause of it, withdrawal of the applicant and removing the effect of the order by entrusting security, responsibility of the plaintiff depends on the outcome of the lawsuit.
mohammadreza kaykha; alireza abin
Abstract
Respect for property is one of the legal rules of law, and unlawful domination or unjust harm will render the offender liable. The intentional look and the importance of safeguarding the financial rights of individuals in the community and ensuring their rights in this area has led the legislator to ...
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Respect for property is one of the legal rules of law, and unlawful domination or unjust harm will render the offender liable. The intentional look and the importance of safeguarding the financial rights of individuals in the community and ensuring their rights in this area has led the legislator to adopt rigorous policies in the field, one of which is the crystallization of the rule of crystallization. Has found. As to the validity of this rule (relative to the ignorant or ignorant ruler), at least two competing currents of absolutism can be deduced from Imamiyah, Sunni, and Iranian law: In one sense, this rule is completely invalid and, with the new principles of civil liability The conflict is obvious. On the other hand, the validity of this rule is a matter of jurisprudence and law and its social necessities are backed. This descriptive-analytical study shows that in analyzing this rule one should choose the middle way and based on the presence or absence of a good intent element in the unauthorized occupant, a proper and proper conduit for the flow of the rule. The phenomena in which Sunni jurisprudence has been traced back to it have referred to the judgmental
Saeid Bighdeli; Ahmad Ekhtiyari
Abstract
Collective loss which in its general sense includes losses suffered by the whole members of a set and in its special sense is the loss incurred on the totality of a set, without it necessarily contains the detriment of the individual members,has today drawn the attention of different countries' law for ...
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Collective loss which in its general sense includes losses suffered by the whole members of a set and in its special sense is the loss incurred on the totality of a set, without it necessarily contains the detriment of the individual members,has today drawn the attention of different countries' law for various reasons. In the meantime, one of the basic questions, is the possibility of its claim by collective legal personality. Despite the importance of this subject and the necessity of determining its legal status, sufficient attention has not been paid to it in domestic laws; and judicial precedent has no specific judgment in this regard. This writing,meanwhile the attempt to study the subject in the accepted framework of rules and regulations governing the law of Iran, has tried to study it in French Law and taken its generalization to Iran's law into accounts. Accordingly, it seems, despite the current differences in the two legal systems in terms of legislation and case law, the law of Iran can also enjoy its present legal potentialities to move toward opening the ways of accepting this claim in its domestic law, as France did.
Ali Jafari; Mohammad Reza Rahbarpour
Abstract
The importance of the violation of data privacy is due to technological developmentsand possibility of more violation of privacy. Civil liability of violating data privacyis more complicated than civil liability of evading other subjects of privacy such ascorporeal or physical privacy, locative privacy ...
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The importance of the violation of data privacy is due to technological developmentsand possibility of more violation of privacy. Civil liability of violating data privacyis more complicated than civil liability of evading other subjects of privacy such ascorporeal or physical privacy, locative privacy and communications privacy. Thisarticle, despite other subjects, discusses exploitation of the issue and annihilation ofdata privacy. Some lawyers believe in ownership of data privacy. These two issues(annihilation of data privacy and considering data privacy as property), turn thedirection of discussions about civil liability of evading data privacy.The present paperrepresents the concept of data privacy and discusses the three bases of civil liabilityof violating data privacy. In addition, ownership theories and annihilation of dataprivacy and also the effect of these two issues on civil liability of violating dataprivacy will be investigated. Finally, we study data privacy torts, civil wrongs whichcause civil liability of data privacy violation.
Mahdi Ghabouli dorafshan; Saeed Mohseni
Volume 2, Issue 7 , March 2015, , Pages 131-155
Abstract
Pre-contract negotiations usually lead to the conclusion of contracts. The principle of party autonomy also applies to the preliminary stages of contract formation. By considering this principle, two questions may arise: i) On which basis, pre-contractual liability may be justified? ...
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Pre-contract negotiations usually lead to the conclusion of contracts. The principle of party autonomy also applies to the preliminary stages of contract formation. By considering this principle, two questions may arise: i) On which basis, pre-contractual liability may be justified? ii) What are the consequences of pre-contractual liability? This article conducts a comparative study under French law, Iranian law, UNIDROIT Principles of International Commercial Contracts and Principles of European Contract Law. It concludes that in French law, breaching the good faith obligation and the concept of fault are the basis of liability, and in Iranian legal system, depending on circumstances of the case concerned, general bases of civil liability, such as Tasbib, La Zarar, Ghorour and fault may be regarded as the basis of pre-contractual liability. In any event, if conditions for imposing pre-contractual liability are met, the party breaking off negotiations would be obliged to compensate for damages covering all losses incurred except for the merely probable benefits resulting from the contract.
