Ebrahim Taghizadeh; Afshin Ahmadi
Volume 3, Issue 10 , March 2015, Pages 9-42
Abstract
In European law and Common Law, on the basis of consumer protection, unfaircontractual terms are subject to specific regulation. In domestic law, lack ofsuch regulation can clearly be observed. According to general principles ofcontract law, these terms seem to be valid. As far as article “46” ...
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In European law and Common Law, on the basis of consumer protection, unfaircontractual terms are subject to specific regulation. In domestic law, lack ofsuch regulation can clearly be observed. According to general principles ofcontract law, these terms seem to be valid. As far as article “46” of ElectronicCommerce Act of I.R.Iran is concerned, unfair terms, which are harmful toconsumers, are not effective. Nevertheless, due to the specific and protectivebasis of E-consumers, this provision does not apply to other cases, andtherefore, it is not possible to refer to fairness under any rubric due to the lackof enforceability. In addition, although the principle of freedom of contract, thetheory of the ‘will’ parties and the necessity of contract indicate the validity ofthese terms, judges, in litigation, could deal with dispute resolution based onfairness. The Unfair Terms in Consumer Contracts Directive 93/13/EEC isEuropean Union Directive (then called European Economic CommunityDirective) which governs the use of surprising or onerous terms used in order todeal with consumers
ghasem razai; ELYAS NOEE
Volume 3, Issue 10 , March 2015, Pages 43-65
Abstract
“Causation” is of particular significance in tort law of Iran and England,particularly in the field of Negligence Law. Existing differences in Iranian legalsystem, as a civil law country, with English law, as a common law country,cause great difficulties in seeking a common perspective in ...
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“Causation” is of particular significance in tort law of Iran and England,particularly in the field of Negligence Law. Existing differences in Iranian legalsystem, as a civil law country, with English law, as a common law country,cause great difficulties in seeking a common perspective in order to examine theconcept of causation. Having said that, this is not an impossible task. In order toconduct a comparative study of causation under the legal systems of Iran andEngland, two principal subjects of “Hidden Tortfeasor” and “VisibleTortfeasor” are distinguished after scrutinizing “The State of Causation”. Onthe basis of the current criteria, an aspect of “Liable Tortfeasor” is examined,which determines a responsible one in the incident under “Tortfeasor” survey. Acertain connection is recognized between the damage and factors contributing tothe occurrence of the incident, but it is impossible to identify the liable factorthen “Hidden Tortfeasor” comes to the surface. According to noticeablesimilarities in Iranian and English law, the latter can present solutions forIranian law, and it can be used as a suitable model for Iranian legal system.Judges can consider the above-mentioned criteria adopted in English law incases in which no solution can be found in Iranian law or existing solution is notadaptable with conditions and nature of the dispute.
Ghafour Khoeyni; Shahrzad Ounagh; Mahshid Jafari Harandi
Volume 3, Issue 10 , March 2015, Pages 67-100
Abstract
In the late 1980s, imposing stringent environmental regulations in industrializedcountries increased the costs of eliminating hazardous waste, and thus its transportto the developing and Eastern European countries began. Following theenhancement of the amount of hazardous waste and relevant disasters ...
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In the late 1980s, imposing stringent environmental regulations in industrializedcountries increased the costs of eliminating hazardous waste, and thus its transportto the developing and Eastern European countries began. Following theenhancement of the amount of hazardous waste and relevant disasters in thesecountries, the export of such wastes was recognized as a serious business by theinternational community. Hence, in 1989, Basel Convention on the Control ofTransboundary Movements of Hazardous Waste and their Principle Disposal wasprepared by the United Nations Environmental Program and adopted by differentcountries. Meanwhile, in1993, Iran became a member of the Conventionsubsequently referring the disposal of special waste overseas to its regulation inArticle 14 of the Law on Waste Management (2005). In relation to the damages oftransporting hazardous waste and its compensation, the Convention has designedan Additional Protocol; attached to the double standard of strict and fault-basedliabilities with limited financial strict liability. Basel Protocol has promoted theBasel Convention regime to ensure minimum compensation through compulsoryinsurance, supplemental financial compensation and time limits for claims.However, unlike other international conventions on hazardous waste, it hasassumed strict liability not to be undertaken by the carrier, but by the people via thetemporal distribution of responsibilities.
Morteza Qsmzadeh; Mohammad Ghorbani Joybari
Volume 3, Issue 10 , March 2015, Pages 101-119
Abstract
In Iranian law, the sale contract consists of two mutual acquisitions formedtogether. These acquisitions are in the same level regarding their positions(Article 338 of Iranian Civil Code).However, in spite of being in the same level, transposition of two acquisitionsare possible, since ...
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In Iranian law, the sale contract consists of two mutual acquisitions formedtogether. These acquisitions are in the same level regarding their positions(Article 338 of Iranian Civil Code).However, in spite of being in the same level, transposition of two acquisitionsare possible, since dichotomy in time of credit affairs allows us to maintaincausing correlation of commitments and to separate them from each other at thesame time. Therefore, although traditional view of legal and jurisprudentialissues does not accept such a condition, following a new approach and focusingon credit reasons, it is possible to accept transposition in the effect of contracts.The issue examined in this research is that the parties may agree to "temporally"submit the transfer of ownership based on their ‘will’, since the field of creditaffairs follows sides` determination aside from developmental affairs. Based onthe principle of determination prominence and article 10 of the Civil Code, suchagreements should be corrected based on sentences, and hence we should notdeal with law issues by ignoring ‘will’ of parties as a result of inappropriate andphilosophical interpretations.
Homayoun Mafi; Meysam Rameshi; Ali Bagheri
Volume 3, Issue 10 , March 2015, Pages 121-140
Abstract
Incidents may occur during the performance of the contract which prevent oneor both parties from performing his obligations, even though the parties do nothave any role in causing such incidents. Art 79 of the CISG deals with theimpossibility of the performance of the contract as a cause of exemption ...
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Incidents may occur during the performance of the contract which prevent oneor both parties from performing his obligations, even though the parties do nothave any role in causing such incidents. Art 79 of the CISG deals with theimpossibility of the performance of the contract as a cause of exemption fromliability for damages arising from a breach of contract. In some cases, thecircumstances, which have been the basis of the contract balance at the time ofcontract formation, change and subsequently the performance of the contractbecomes difficult. The CISG contains no specific provision dealing withhardship (Ta'assor) and related exemptions. Therefore, a question arises as towhether the CISG covers such cases. There are different doctrinal views andjurisprudence which will be discussed in this article.
Hamid Reza Nikbakht; Shaha Jafaro NADOUSHAN
Volume 3, Issue 10 , March 2015, Pages 141-161
Abstract
In the realm of commercial trade, it is a common practice that sellers and buyersmanifest their intentions to conclude the contract of sale through differentcommunications and correspondence. The parties may exchange forms andgeneral terms prepared invariably in advance for all contracts. There may be ...
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In the realm of commercial trade, it is a common practice that sellers and buyersmanifest their intentions to conclude the contract of sale through differentcommunications and correspondence. The parties may exchange forms andgeneral terms prepared invariably in advance for all contracts. There may be aconflict between the buyer’s and the seller’s forms. Thus, when a dispute arisesbetween the parties, the main question is whether a contract has beenconcluded, even though there are conflicting terms. If the answer is positive, afurther question is: What are the terms of this contract?By considering circumstances and conduct of the parties, on the whole, after theexchange of the forms, it can be said that there is a valid contract. A viablesolution is to disregard the conflicting terms, and instead, to consider provisionsof the law governing the contract. When CISG is the law applicable to the salecontract, its provisions may well be used to fill the gaps after conflicting termsare ruled out.
