Private and Islamic Law
Hasan Jafari Tabar
Abstract
Should the two critical sections of law, i.e., the statutes and the court's decision, correspond to reality? Explicit clarity and determinacy in the law are not always desirable, and where legislators know that they cannot enact a just law, they should draft their general rule with ambiguity and vagueness ...
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Should the two critical sections of law, i.e., the statutes and the court's decision, correspond to reality? Explicit clarity and determinacy in the law are not always desirable, and where legislators know that they cannot enact a just law, they should draft their general rule with ambiguity and vagueness so that judges can at least reach a fair judgment in each specific case. However, if the law has unequivocally set forth an unjust rule, the way for judges to achieve fairness is by applying judicial/legal fictions; not recognizing the case’s matter of fact with the intent of not applying its matter of law. The stipulation as regard fairness, however, is that these judicial fictions should be used to restore the lost justice in the enacted law, not to impose additional injustice on citizens. The criteria for this discernment are the judgment of the parties to the dispute, of judges of higher courts, and of common sense.
Aristotelian ethics holds that justice is a mean theory that leads to courage, chastity, and wisdom. This means that excess and deficiency in these three virtues can result in injustice, and maintaining moderation is therefore always commendable. Now, we must ask what should be done if the law, in its extreme pursuit of clarity and truth, reaches an unbearable threshold. From the extreme precision in the implementation of strict religious rulings to the precise discovery of truth by any means by the court. Should the law ratify strict religious rulings in the name of protecting the family? And if someone committed debauchery in a foreign country and there was no evidence except a video taken by the person himself, should the Islamic judge watch the video to complete the evidence for his judicial verdict on the sharia punishment? If this is the correct path, then where should the law show leniency and avoid rigidity, fanaticism, and naivety? Blessed is the time when the law abandons all this clarity and honesty, becomes acquainted with some myth, fiction, and falsehood, and is assured that nothing terrible will ever happen.
Specifically, this article proposes two types of literary falsehoods that the law can use to avoid causing discord: ambiguity and metaphor. When we speak of the law, we always refer to its two perennial branches: legislation and adjudication. We now say that legislators can use the falsehood of "ambiguity" in their legislation, and judges can use the falsehood of "metaphor" in their adjudications, thereby revitalizing the law that is breaking from excessive dryness.
However, ambiguity is a falsehood achieved by deliberately creating vagueness in speech. Legislators can write laws with ambiguity where the strict enforcement of Sharia rulings is evidently harsh and unjust. Contrary to what has been said, clarity and transparency in law are not always good, and where social, philosophical, cultural, and economic discussions about a subject are still ongoing and the legislator finds themselves compelled to write a law, it should be written as ambiguously as possible and leave the judges with the flexibility to interpret it appropriately so that this ambiguity ultimately benefits the human groups in dialogue.
But if legislators have written a harsh and explicit law out of imprudence, judges can resort to their own mythical falsehoods to perhaps alleviate the bitterness of the law: judicial metaphors and fictions, or mythical and legal fictions created by judges to intervene in the matter of fact of a case they are dealing with, and delay the implementation of a bad legal text that does not allow for any interpretation. Legal fictions of the adjudicative type are the shadow of legal fictions of the legislative type that have been cast from the position of legislation onto the platform of adjudication. However, the legal fiction is a substantive rule, unlike the irrebuttable presumption which is proof of the claim. Nevertheless, the adjudicative fictions in the context of this article are proofs of the claim and can be compared with irrebuttable presumptions, with the difference being that the judge creates them, not the statute.
Private Law
Farhang Ganjedanesh; mehrab darabpour
Abstract
In project finance agreements, the investor, the contracting authority, and the lender all rely on the project's future revenues to achieve their economic objectives. This means that one of the greatest risks in such projects is the termination of the contract before the contractual objectives are met ...
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In project finance agreements, the investor, the contracting authority, and the lender all rely on the project's future revenues to achieve their economic objectives. This means that one of the greatest risks in such projects is the termination of the contract before the contractual objectives are met and the execution period ends. In fact, in project finance agreements, investors and lenders do not have the right to seek recourse from the contracting authority to recover the financial resources spent on the project. Furthermore, either the project’s assets are insufficient to recover their large-scale economic investments, or they belong to the contracting authority, preventing investors and lenders from claiming them to satisfy their demands. In this context, a contractual clause known as the "termination payment" is included in project finance contracts as a key risk management tool for premature contract termination. This clause applies in all three scenarios of contract dissolution: due to the contracting authority’s fault, the investor’s fault, or reasons beyond the control of both parties. This study focuses on describing and analyzing termination payments in cases where the investor is at fault, allowing the lender and investor to recover a specified portion of the financial resources spent on the project. Analyzing this contractual provision is significant because, under general contract principles, a breaching party is not entitled to claim damages resulting from its own fault. However, the termination payment clause provides the breaching party and its lender with a mechanism to compensate for losses in various ways. Given the exceptional nature of this clause within contract law, it is essential first to examine the underlying reasons for its inclusion in project finance agreements. The payment of a termination fee in cases of investor fault, while preserving the contracting authority’s right to termination, enables the investor and lender to recover some of their financial resources. In essence, this clause serves as a crucial mechanism for balancing the contractual and sovereign rights of the contracting authority with ensuring the repayment of costs incurred by investors and lenders, making it a vital tool for project risk management. Without such a clause, securing necessary funding from financial markets becomes extremely difficult or even impossible, or the cost of obtaining financial resources increases to the point where the project loses its economic viability. Following the justification for the termination payment clause, this study examines how the clause is structured and how the termination fee amount is calculated. A key concern for the investor, the contracting authority, and the lender is selecting the appropriate method for calculating the termination fee. This choice is critical for risk management and for protecting the interests of all three parties involved in the project finance agreement. On one hand, selecting an appropriate calculation method incentivizes the parties to avoid termination and complete the project. On the other hand, an unsuitable method could encourage parties to exploit termination opportunities for excessive and windfall profits rather than making efforts to execute or rectify the project. The three main methods for calculating the project termination fee in project finance agreements are the debt-based compensation method, the market value method, and the book value method. There is no universal rule for determining the most suitable calculation method for any project. Just as the provisions of project agreements and financing contracts vary based on each project's unique characteristics, the termination payment clause must also be tailored to the specific contractual framework of each project. However, fundamental principles can be established for properly structuring this clause. The method for determining the project termination fee should consider the stage at which the contract is terminated. The further the project has progressed, the greater the investor's and lender’s entitlement to receive a termination fee. Another key consideration is protecting the lender’s rights, especially since the lender typically plays no role in causing the termination. Additionally, the termination payment clause should be structured to reinforce the parties' commitment to continuing contract execution. If the chosen calculation method provides excessive profits to any party upon contract termination, it may incentivize termination and reduce their focus on project completion. Finally, this study specifically examines the application of the termination payment clause in oil and gas contracts. Managing this issue in the oil and gas industry is particularly complex due to the tension between the host government’s sovereign rights and the need to incentivize investment in energy projects. On one hand, the host government’s sovereignty requires full recognition of its ownership rights over energy resources. If a contract is terminated due to investor fault, no claims over the host government's oil and gas assets or future revenues should be accepted. On the other hand, given the significant capital investments required in the oil and gas sector, ensuring adequate returns for investors and their lenders is a crucial factor in attracting investment. Without this assurance, securing the necessary investment in these industries becomes impossible. To explore these challenges, this study includes a case analysis of Qatar’s Dolphin Gas Project, focusing on its gas extraction, sales, and transportation contracts. The findings indicate that in each category of upstream, midstream, and downstream contracts within the Dolphin Project, the management of termination risk due to investor fault follows distinct legal frameworks. These frameworks aim to strike a balance between the sovereign rights of the host government and the financial interests of investors and lenders.
Private Law
amirpouya rashidi; saam mohammadi; hamid abhari
Abstract
Legitimate confidence is an important legal issue that, unfortunately, has not received sufficient attention in the field of private law. Neglecting it has undesirable effects on legal relations and causes society to despair of justice. The concept of legitimate trust is well-known and considered in ...
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Legitimate confidence is an important legal issue that, unfortunately, has not received sufficient attention in the field of private law. Neglecting it has undesirable effects on legal relations and causes society to despair of justice. The concept of legitimate trust is well-known and considered in the field of public law, but this important legal tool has been neglected in the realm of private law and has not been given the attention it deserves, even though many legal structures are based on this foundation, and it is necessary for lawyers and writers to try and seriously investigate and explain its true position.
Legitimate confidence creates a legitimate expectation in the mind of the one who confides. An expectation that, if not met, causes society to become disillusioned with the law and legal instruments. In fact, legitimate expectation is the necessary consequence of the legitimate confidence and action in the law that arises in a person in good faith. Every person who considers herself/himself to belong to a society and hopes to receive an appropriate response from that society for this legitimate expectation. This confidence is a state that is created by reason and law. Without a doubt, failure to provide an appropriate response to the expectation resulting from legitimate confidence violates the dignity and worth of a person. However, protecting the dignity and worth of a person is one of the fundamental principles of law and ignoring it is unjustifiable. confidence is a state that arises from will, and the Rule Of Legitimate Confidence in this research refers to all issues related to confidence, such as the conditions for its realization and the effects resulting from it. Not every confidence is worthy of legislative support. A supported and so-called legitimate confidence is one that is based on a correct understanding of the message of a credible authority, such as law, judicial authorities, or custom.
"Legitimate Confidence" is not the only legal rule governing legal relationships between individuals. Other principles, especially in the area of private law, govern individuals and the relationships between them. Therefore, it is necessary for lawyers to specify and explain the position of "legitimate confidence" among other legal rules.
This is a long road, and in each investigation, limited conditions and events can be assumed and the conflict of rules related to that assumption can be investigated. However, as research continues, the legal position of the rule of legitimate confidence among other rules becomes clearer. Among the issues that can be a clear and controversial place where the rule of legitimate confidence conflicts with other legal standards is the reinstatement of the enforcement of civil judgments. When a decision is issued by a reputable authority such as a court or arbitrator or arbitration institutions, the law requires everyone, especially those who are related to that decision, to accept and respect its provisions. As a result, the law requires individuals to trust the correctness, validity, and enforceability of that decision. In other words, the law requires both the validity of the decisions of judicial and arbitral authorities and their implementation, meaning that the law requires people to trust the performance of that authority. People trust, for example, by recognizing the validity of a court or arbitrator's decision as a financial owner or as having a legal status. Based on this state and the belief they have acquired, they may make deals with those persons who are affected by the decision in question or create a new legal relationship, or those persons themselves may take actions based on the decision that has been issued and changed their legal status that they would not have taken if it were not for that decision.
So far, there is no reason to rely on the rule of legitimate confidence, but if that ruling is overturned and the circumstances are provided to restore the executive operations to the previous status, it is difficult to create unwanted changes in the status of those who have trusted the performance of the court or arbitrator, and especially the units that implement their rulings. On the one hand, if we change the situation of the people affected by the execution of the court or arbitrator's decision without paying attention to this confidence and its effects, we have violated the previous ruling of the law that people should trust the performance of authorities such as the court and arbitrator, and in a way, we have rendered the law invalid And on the other hand, if we leave the situation as it is, we will have rendered the change in that decision, which was previously valid and now is recognized as invalid, ineffective. In this case, a conflict arises between the place of application of the principle of domination(meaning the rule that allows the owner to make any kind of occupation of his property that he wants) and respect for property and people's rights (meaning the rule that stipulates that property and people's rights remain immune from any kind of encroachment) on the one hand, and legitimate confidence on the other.
The process of restoring the execution of civil judgments sometimes appears so unfair that it has prompted scholars to use facilities such as the assumed wasted to reduce the undue expansion of the scope of restoring the executive operations on the acquired rights of innocent persons and thus help justice. However, many do not care about the legitimate confidence and the expectations that result from it and will go to any cost to restore the status of the persons affected by the judgment. That is, they believe that the money that was the subject of the overruled decision should be taken from a third party in good faith and given to the former defeated party, or they believe that the legal status of the overruled decision should be changed in favor of the former defeated. The reality is that some people, trusting in the legal process of civil enforcement, incur expenses and obtain rights that it is not fair to ignore. In fact, with the reinstatement of enforcement operations, a conflict of rights arises between the former defeated party and this category of persons.
This article showed that familiarity with legitimate confidence in the discussion of restoring executive operations can lead to:
A: The acquired rights of individuals who have trusted in the credibility of the judicial authorities that execute court and arbitrator decisions should be systematically and rigorously protected.
B: The status and scope of the legal rules relevant to the discussion, and in particular their relationship to the rule of legitimate confidence, should be clarified, and the rules should be applied in a manner that does not undermine the legitimate expectations of the people.
P: A means to protect the credibility of the law and justice should be made available to lawyers.
Private Law
abbas karimi; Shahab Tariveh
Abstract
For a contract to be effective and to meet the intentions of the parties to the agreement, a set of roughly similar conditions is established in the form of legal rules in all legal systems. The Enforcement of these rules, like any other legal rule and perhaps more so, must be accompanied by effective ...
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For a contract to be effective and to meet the intentions of the parties to the agreement, a set of roughly similar conditions is established in the form of legal rules in all legal systems. The Enforcement of these rules, like any other legal rule and perhaps more so, must be accompanied by effective sanctions, as conceptually, the providing of contract validity conditions without effective sanctions is almost inconceivable. However, the absence of contract validity conditions does not have uniform consequences and may or may not be added after the formation of the contract. In Iranian contract law, these consequences are called “Adam-e Nofuz” (=Non-enforceability) and “Botlan” (=Nullity) respectively. The nullity of a contract is the result of the lack of one or more essential contract validity conditions, and its consequence is the failure to achieve the intended legal effect of the contracting parties, contrary to their will.
The objective of this article is to examine the consequences of the disappearance of these essential conditions of contractual validity after its conclusion in the valid form and before the complete performance of the primary obligations arising from the contract and to determine what happens in this scenario to a contract and parties’ legal relationship. Organizing the termination of the contract in light of its commonality with nullity under the recent criterion (being spontaneous) is the secondary goal of this paper.
Based on this, it needs to be addressed: Can the disappearance of the essential conditions of contractual validity be considered nullity that occurs after the conclusion of a valid contract, or should it be sought under a different heading? Do the effects of nullity always entail annulment, or does its coercive effect have only an essential characteristic? In Iranian law, if after the conclusion of a valid and effective contract, the legal relationship terminates automatically, usually it is said that the contract has been terminated (=Enfesakh), and nullity is related only to the stage of contract formation. So, it must also be explained what relationship exists between the disappearance of the essential contract validity conditions and Enfesakh.
This paper argues that the cause of Enfesakh is the disappearance of the essential contract validity conditions. Therefore, this issue has a common basis with nullity at the time of formation, and the only difference is the timing of the occurrence of the cause. Thus, the disappearance of the essential conditions of contractual validity is a “Subsequent Nullity” that affects a valid contract.
To answer the questions and achieve coherence about the basis of legal termination of the contract, an analytical-descriptive method has been followed: Examining the structure of the contract, its constituent elements, and how it differs from the effect of the contract; A conceptual analysis of a null contract and its distinction from a non-existent contract from the perspective of its impact on the parties' legal relationships; Investigating the characteristics of nullity and studying the effects attributed to it; Researching the use of terminology related to Botlan and Enfesakh terms in Imami Fiqh and Iranian civil law. Based on this approach, the possibility of nullity occurring in a valid contract has been assessed. Subsequently, by explaining the causal basis of nullity, which is the absence of the essential contract validity conditions, the disappearance of each of these conditions before the complete performance of the primary contractual obligations has been examined separately. The effects of this absence on the previous valid contract have also been studied.
The research findings indicate that when, after the conclusion of a valid and effective contract, any of the essential conditions of contractual validity disappear before the complete performance of the contractual obligations, the contract is terminated spontaneously and automatically. For various reasons, this situation can be considered as a subsequent nullity on a valid contract: the unity of the nature of this event with nullity at the time of contract formation, non-essentiality of annulment on the legal structure of nullity, the lack of logical and legal conformity in the timing of nullity and contract formation. Based on this and considering the concept and use of the term “Enfesakh” in Imami Fiqh and Iranian civil law, it is noted that “Subsequent Nullity” logically is identical to and a subset of “Enfesakh” in the two specific (legal termination) and general (termination) senses.
Therefore, it can be said that the disappearance of the essential contract validity conditions resulting in nullity is not contingent on the time of contract formation; rather, attention must be paid to the time of the occurrence of the cause. Thus, whenever, before the complete performance of contractual obligations, one of the causes of nullity, namely the lack of essential contract validity conditions, arises, it results in nullity, and the contract is terminated from that time. In this way, the term “Botlan” in legal and fiqhi texts is clarified. Furthermore, it becomes apparent that the well-known statement that ‘botlan (=nullity) is limited to the stage of contract formation’ has been adopted without regard to the basis of nullity, and fails to reflect a substantive distinction; instead, it merely results from a verbal dispute and lacks a specific rationale. It is also evident that the occurrence of subsequent nullity of a contract may result from one of these circumstances: the waste of the subject matter of the contract or its essential legal terms (for example, the destruction of the subject matter before delivery, the elimination of its fundamental attributes, or the prohibition of the subject of the transaction); the death or incapacity of one or both of the contracting parties in “Jayez” contracts (due to the structural dependency of these contracts on the parties' personalities); and finally, the influence of public order impediments (becoming unlawful the explicit purpose of transaction). In this way, the classification of legal termination of the contract is organized according to the basis of nullity of the contract, which is the lack of the essential conditions necessary for the validity of the contract
Mahdi shahabi
Abstract
Solving the contract problem is a function of the type of contract model. It is simplistic to imagine that the solution given in civil law to solve the contractual issue is accidental. The contractual model means a pyramidal structure, within its framework, the relationship between contractual principles ...
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Solving the contract problem is a function of the type of contract model. It is simplistic to imagine that the solution given in civil law to solve the contractual issue is accidental. The contractual model means a pyramidal structure, within its framework, the relationship between contractual principles is defined, and it is clear that the type of relationship between contractual principles, and for example the relationship between the principle of autonomy of will and the principle of contractual fairness, or the relationship between the principle of binding contract and the principle of contractual fairness, has an undeniable effect on how to solve a contractual problem, including the possibility or impossibility of judicial modification of the contract. Even, the meaning and function of the contractual principles are completely related to the position of the principle in the pyramidal structure of the contractual model; the principle of fairness, which is below the binding principle of the contract, cannot have a meaning and function other than the optimal implementation of the contract, and the principle of fairness, which is higher than the binding principle of the contract or higher than the principle of autonomy of will, can be the source of new contractual obligations and the basis for the expansion of the scope of contractual obligations. However, the point is that the contractual model and the type of the contractual model are a function of what is the basis of the validity of the provisions of the contract, and the basis of the validity of the provisions of the contract itself is a function of the nature and type of legal philosophy and, in fact, the type of the basis of the validity of the norm in the legal structure. It is evident that if we face pluralism at the level of validity of the norm, we will also face pluralism at the level of the validity of the provisions of the contract. And, accordingly, the contractual model, and monism in the validity of the norm leads to unity in the validity of the provisions of the contract and the contractual model. Will, reason, and the nature of things can be considered as the three bases that have been competing as the basis for the validity of the provisions of the contract in the context of the modern paradigm. It is certain that the Kantian conception of natural rationality, being the manifestation of Homo noumenon, is more reliable for modernity and this is why it presents the objective will of humans as the basis of the validity of the contract. However, voluntarist positivism, rooted in the thought of Kant as a jurist, and not a moralist, insists on the will of the legislator in place of the objective will of humans as the basis of the contract. The competition between these two foundations was going on throughout the nineteenth century. However, when modernity is faced with a crisis and the solution to the crisis is sought in traditionalism and phenomenology, the nature of things is proposed as the basis of the contract. In fact, the nature of things is a reaction to the extremism of Kant's normativism and the dominance of textualism and legalism based on volitional positivism. Although the original nature of things is the same Aristotelian nature of things. However, jurists who are anxious about the heritage of modernity, i.e. will and right, try to present a conception consistent with modernity, of the nature of things and keep their distance from phenomenologists and traditionalists. Based on this, we can talk about two types of the nature of things, that is, Aristotle's nature of things and the nature of things compatible with modernity. None of these two types of nature of things consider coercion as an inherent element of the contract and are open to contractual dynamics. Aristotle's nature of things requires the contract as a means of realizing exchange justice based on the object and not on the will, and for this purpose, he puts the principle of fairness at the highest; Gény's nature of things recognizes the principle of the autonomy of the will in interaction with social cooperation and the principle of socialization of law. However, Gény's eclecticism finally prevents the judge from considering himself to be in the face of the contractual just and trying to discover it. And he necessarily remains faithful to the principle of social voluntarism. In such a thought, the fourth paragraph of Article1231-5 of the French Civil Code cannot be accepted. Gény's eclecticism is not considered at the international level either. The preference of international documents, including the principles of international commercial contracts, is based on Aristotle's nature of things. Article 3-2-6 of the principles of international commercial contracts, and dominance of the principle of the negation of hardship over the principle of a binding contract, and the acceptance of the judge's authority in amending or terminating the contract, is a good proof of this. The article that seems to have been the model for recruiting article 1195 of the French Civil Code.
The final point is that it is not easy to identify the type of contractual model in Iran's legal system, which is sometimes mentioned as an example of the Romano-Germanic Legal System. On the one hand, with Article 230 of the Civil Code, the Unification Decision No. 805 of the Supreme Court, the lack of formality of the judge's authority to amend the terms of the contract, and considering the predominance of legalism in judicial thinking, which is evidenced by the numerous sentence of courts, regarding the amendment of the obligation and regarding the effect of hardship on the contract, Iran's contractual system can be considered as following the model of the principle of binding contract. And on the other hand, considering the superiority of the principle of LAZARAR over the principle of dominion in Article 132 of the Civil Law, and the domination of the principle of LAZARAR over the principle of binding contract in the opinion of the great jurists, whether by interpreting the negation of the verdict of harm or by interpreting the negation of the verdict in the language of the negation of the subject, and the correctness of the negation of the positivist legalism as the basis of the validity of the civil law norm in Iran's legal system, it seems that the contractual model is close to the model of the principle of fairness; an approach that the author also believes in and will discuss in detail at another time
Private Law
Haniyeh Zakerinia; Zahra Gholampour; Hojjat Mobayen
Abstract
Nowadays, the presence of actors, athletes, and other celebrities and influential figures in advertising goods and services is common, as exercising their Right to Publicity. However, the question arises: If the use of these goods and services causes damage to the consumer, on what basis and under ...
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Nowadays, the presence of actors, athletes, and other celebrities and influential figures in advertising goods and services is common, as exercising their Right to Publicity. However, the question arises: If the use of these goods and services causes damage to the consumer, on what basis and under what conditions would the celebrity be held liable for compensation? Generally, if the involvement of a celebrity is limited to merely appearing in advertisements without explicitly endorsing the product, they cannot be liable. In these cases, any damage, even if resulting from deception or misrepresentation, is not attributable to the celebrity but to the producer or advertiser who has misused the right of publicity. In such cases, the celebrity may even seek compensation for damage to their reputation due to such misuse.
However, when a celebrity explicitly endorses a product, they use their Right to Publicity directly. If harm occurs, they may be liable under certain conditions. In this case, the celebrity affirms the quality and characteristics of the goods or services, and consumers are encouraged to use them based on their trust in the celebrity. Despite various perspectives on this liability basis, the article analyzes the liability of celebrities based on the Principle of Prohibition of Abuse of Rights. This analysis aligns more closely with the nature of their actions in using their Right of Publicity to endorse products. To determine Abuse of the Right of Publicity, the application of unreasonable conduct (fault in exercising the right) is so they may be liable, if a celebrity’s endorsement of goods or services constitutes illegal advertising practices, such as misleading customers, making false statements, or deceptive advertising. This is true even if the celebrity was unaware of the inaccuracy of their statements or had no intention to deceive consumers.
The most challenging aspect of proving liability is establishing the causal relationship between the harm and the fault, as defective goods or services typically cause the harm and are primarily attributable to the producer or service provider. Proving the celebrity’s role in this liability is difficult. Several theories have been proposed to establish causation, including the influence on the audience, the occurrence of deception, reasonable reliance, and the breach of an obligation to endorse the overall performance of the product. The theory of influence on the audience, broadly interpreting, significantly expands the scope of liability, whereas a narrow interpretation limits it. Proving deception is also challenging in most cases and only holds the celebrity liable if there is intent to cause harm. The criterion of reasonable reliance requires proving that consumers relied on the celebrity’s endorsement when purchasing the product, which is challenging to establish unless presumed.
Therefore, the final criterion—the breach of an obligation to endorse the overall performance of the product—can be considered the best standard for determining causation. In other words, if a celebrity endorses a product, they implicitly confirm that they have thoroughly examined it and vouch for its overall performance. This explicit or implicit statement constitutes a result obligation to confirm the product’s overall performance, and the mere failure to achieve this result leads to liability. This analysis has two implications: First, the celebrity’s liability arises from their endorsement and is independent of the producer’s liability. Second, attributing harm to the celebrity does not require proving their knowledge or fault. Thus, if it is established that their false statements caused damage, they will be held liable even if they were unaware of the inaccuracies unless they can prove that they exercised all reasonable efforts to obtain accurate information and ensure the truthfulness of their statements.
In the liability of celebrities, deception or false statements are not prerequisites, and even proving the accuracy of their statements does not absolve them of liability. This is because what the celebrity explicitly states may not be false, or they may not have made explicit statements but merely expressed support for the product. However, if the ordinary interpretation of their actions constitutes an endorsement of the overall product, they should be held liable for breaching the general obligation to endorse the product. Conversely, since celebrities only endorse the overall performance of a product, their obligation is limited to the product’s general performance. They are not liable for specific or minor defects unless they have explicitly endorsed those aspects.
Based on this analysis, in cases where a celebrity is held liable, a form of joint liability between the producer and the celebrity can be considered. On one hand, the harm to the consumer is attributable to the producer (liability arising from product defects). On the other hand, the celebrity is liable for the Abuse of the Right of Publicity by endorsing the product (liability arising from endorsing the overall performance of the product), and the entire harm is attributable to them as well
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