Private Law Research

Abstract In order to ensure a timely performance of contractual obligation, the use of guarantee is regarded as one of the most appropriate ways of dealing with a breach of promise. Compared to the Convention on the International Sale of goods, it is difficult to find a legal basis for a possible breach in national law. Nevertheless, in a substantial number of cases in Iranian law, by considering the theory of possible breach, guarantee has been used to address the possible breach of promise by promisor. Until this legal gap is filled, it would appear that it is appropriate to use the principle of demand guarantee for the purpose of securing the performance of contractual obligations in domestic law.

Abstract In international commercial contracts, imposing a time-limit on bringing a legal action through litigation is not only important for the purpose of certainty and protecting parties’ interest, but it is also considered to be essential. Both the Limitation Convention and Uniform Commercial Code (UCC) establish four­ year time periods, while DCFR and UNIDROIT 2010 consider three-year time periods. Commencement date of the limitation period plays a significant role in determining this duration. In accordance with provisions of the Convention, the limitation period commences on the date when the claim occurs. In Article 2­725 of the UCC, the same criteria are taken into consideration. Hence, in connection with the determination of the commencement date, except in cases where the right to terminate is established, provisions of the UCC are consistent with the Convention. This is why in the UCC, in most cases except for claims arising from fraud, the "discovery rule" to determine the commencement date has been disregarded. By contrast, in UNIDROIT 2010 and DCFR, the "discovery rule" has been applied in all cases. Therefore, except in situations where claims arise from fraud, provisions of the Convention are inconsistent with the two recent instruments.
 

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The creditor is entitled to collect the debt from the debtor. The possibility of collecting the debt through the debtor’s body organs is a disputable issue. By explaining different ways of collecting the debt from the defaulting debtor, such as compelling him to pay his debt, the court’s order for the payment of the debt from the debtor’s property, imprisonment and the rules relating to insolvency, this article examines the possibility of collecting the debt from the debtor’s body organs. The issue is whether human being has such a control over his body organs for marketability of these organs and to transfer them. By taking into consideration the fact that the body organs have market value and human being have dominion, but not ownership, over their body organs, it can be concluded that the body organs are not part of the debtor’s property. Thus, it is not possible to compel the debtor to cut his body organs for the payment of his debt. It is not also possible to cut his body organs in return for his debt when he is dead. But if the dead’s organs are sold, they can be given in place of his debt.

Abstract The contract of surrogate mother is a contract in which a woman accepts to carry an embryo made of sperm and ovule of intended couple in her womb and delivers child after the birth. This new contract has posed a lot of questions, as far as jurists and lawyers are concerned. One of the most important issues in this regard is the determination of the legal nature of the surrogate contract, since the issue of the legal framework of the contract adaptable with the common will of the parties has a significant impact on the determination of the legal relationship between the parties. 
Jurists and lawyers suggest and examine some legal structures, such as lease, award, loan, deposit and innominate contracts, as proper structures for this contract. This article discusses conclusion of the surrogate mother contract through the above-mentioned legal structures. It argues that the legal nature of this contract cannot be based on nominate contracts, and therefore, it can be justified on the basis of article 10 of the Iranian Civil Code.

Abstract One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying contract by principal. In fact, documentary characteristics and the principle of independence provide an opportunity for the beneficiary to affect the exceptional and secondary function of bank guarantee as a result of an unfair demand. The question posed is how unfair demand can be prevented. By examining rules and regulation governing international trade and the draft bill on commercial law approved in 1391, it would seem that among possible solutions, such as the requirement of presenting a court judgment or an arbitral tribunal award and a statement by the beneficiary or principal indicating points in which the applicant is in breach of its obligations, the assumption of non­performance of the contract, in the event of demand by the beneficiary, is the most appropriate solution.
 

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