Mirghasem Jafarzadeh; Iman Hosseinpour Sharafshad
Abstract
In this research it is shown that attributing a contratio sensu to a description used by the legislator when providing legal rules is much debatable among Islamic Law Schoolars. The same debate seems to exist among Iranian legal writers. The detailed examination of this research does also show the fact ...
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In this research it is shown that attributing a contratio sensu to a description used by the legislator when providing legal rules is much debatable among Islamic Law Schoolars. The same debate seems to exist among Iranian legal writers. The detailed examination of this research does also show the fact that when justifying a contratio sensu for description, some scholars in Sheih Jurisprudence are of the opinion that in order to prove such implied indication for description it should be an exclusive causal link between description used and the express contemplated Legal rule. In contrary to this view, it is suggested by the writers that it would suffice if it is proved that there is definite causal link between the description used and the legal rule provided by express language.Likewise, althohgh the result is chalangeable in the Principles of Sheih Jurisprudence, it can suggsseted by confidence that such Sensu can be attributed to the Iranian Civil Law Lawmakers in most of cases. This view can be justified by various aruments such as the usual intention of the authority using such language to provide legal rules, normal perception of the addressed persons, reasonable meaning of the texts used by the legislator, constant precedents of the reasonable persons, the reasonability of the legislator, the principle of the necessity of generality in providing the legal rules and the usual use of such language in providing legal rules.Based on this suggestion and in order to identify what kind of description could result into a contratio Sensu or not, the description used in law texts, shall be divided into an indicative which has a contratio Sensu or an explanatory which has not. It shall also be divided into a description which is used to describe the subject-matter and the one which describes the legal rule. In the first case it has not a contratio Sensu and in the second one has. Finally, it is also shown that "the description used in the law texts, has in principle a contratio Sensu, unless it is proved to be an explanatory, or subject matter-conditioning or has no causl linkage with the legal rule provide by exress language."
Mostafa Danesh pajooh
Abstract
One of the most controversial issues about which there are different ideas is the issue of cheating the law and its effects in both domestic law and private International law. In Iranian law, there is no a legal article that explicitly states the verdict of cheating, so the judge in the face of cheating, ...
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One of the most controversial issues about which there are different ideas is the issue of cheating the law and its effects in both domestic law and private International law. In Iranian law, there is no a legal article that explicitly states the verdict of cheating, so the judge in the face of cheating, based on Principle One Hundred and Sixty Seven of the Constitution, must refer to valid sources or jurisprudential Fatwas (Sharia and Islamic jurisprudence) and rule. One issue that can be documented to some extent is the issue of trickery. In this article, after mentioning cheating in customary law and explaining trickery in Islamic jurisprudence, the author compares these two concepts thematically and jurisprudentially, and in an attempt to infer the verdict of cheating from the verdict of trickery, concludes that according to the issue of trickery, it is impossible to consider one verdict for cheating, but depending on the different types of cheating, various verdicts will be ruled on cheating.
Hamid reza Behroozi zad
Abstract
The principle of satisfaction of contracts is one of the basic principles in Imami jurisprudence and Iranian law, which also has economic aspects. According to this principle, people conclude their contracts based on it. In this article, we have tried to prove that underwriting in the endowment is not ...
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The principle of satisfaction of contracts is one of the basic principles in Imami jurisprudence and Iranian law, which also has economic aspects. According to this principle, people conclude their contracts based on it. In this article, we have tried to prove that underwriting in the endowment is not only legitimate but also a definite contract. In fact, the difference between a definite contract and an indefinite one is in terms of prevalence and non-prevalence. The prevalence of this contract at the present time can be described as definite. In this case, we will not need other analyzes to justify the legal and jurisprudential nature of the underwriting. We will also move from formalism in contracts to the rule of will. This will be desirable for Imami jurisprudence and Iranian law and the economic view of the law. In fact, this economic view of the will will cause more attention to the contract regardless of its form and economic prosperity based on domestic jurisprudential and legal principles
SeyydAhmad Mousavi; Alireza Nojavan; Seyed Mohamad tagi Alavi
Abstract
The necessity of accomplishing the contract has been expressed in the form of the principle of irrevocability, the irrevocability of fulfilling the contract, fulfilling the covenant, holiness and compulsory of contracts, irrevocability and compulsory of contract. The purpose of all these principles is ...
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The necessity of accomplishing the contract has been expressed in the form of the principle of irrevocability, the irrevocability of fulfilling the contract, fulfilling the covenant, holiness and compulsory of contracts, irrevocability and compulsory of contract. The purpose of all these principles is summarized in the contract and becomes a binding force as soon as it is created, to which the parties participating are bound by its provisions. In jurisprudence and Iranian law, the pacta sunt servanda is interpreted as the principle of the irrevocability of contracts. the pacta sunt servanda has been accepted in jurisprudence and Iranian law. The principle of irrevocability is different from that of the pacta sunt servanda. From 219 of the Civil Code, some have inferred the principle of irrevocability in the position of doubt in the revocability and irrevocability of contracts, and others have inferred the pacta sunt servanda of absolute contracts, both revocable and irrevocable. This article tries to identify the pacta sunt servanda in Iranian law, provisions, concepts, and sources and explain its differences with the principle of irrevocability and similar principles in Iranian law, jurisprudence, and foreign law
Mohammad Mansouri; Mohamad Mahdi Asharif; Sayyed Mohammad Sadegh Tabatabaie
Abstract
Due to the wide scope of compromise contract, in addition to most nominate contracts, innominate contracts can be concluded with title of compromise contract. But is any agreement outside the nominate contracts necessarily considered to be compromise contract and does it not need to be intended as a ...
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Due to the wide scope of compromise contract, in addition to most nominate contracts, innominate contracts can be concluded with title of compromise contract. But is any agreement outside the nominate contracts necessarily considered to be compromise contract and does it not need to be intended as a compromise contract or its content and its nature to conclude it? Does compromise have its own particular content that must be intended like the other nominate contract, or is it characterized by not having a framework? Some jurists believe that the compromise contract has a concept equivalent to article 10 of civil law and notwithstanding the compromise contract which covers all innominate contracts, article 10 is not required. In addition to opposing the viewpoint of synonymy of compromise contract and innominate contracts with religious jurisprudence and civil law who regard compromise as having a specific content. For the following reasons this view cannot be accepted and compromise contract and innominate contracts must be considered two different concepts. Firstly: A type of agreement can be considered as compromise contract in which outcome of contract includes agreement, not every agreement out of nominate contract. Secondly: Compromise contract can be substitute of the nominate contracts, while innominate contracts cannot. Thirdly: Compromise contract is necessarily irrevocable contract and innominate contracts may be revocable contract. Fourthly: In compromise based on negligence, detailed knowledge is not required, but in innominate contracts, essential conditions, including detailed knowledge, are required. The only instance in which an innominate contract can be considered as compromise is one that denotes resolving or preventing conflict
Mahdi Narimanpour; Mohammad Bahrami Khoshkar; Mohsen Esmaili
Abstract
"Voidness" is a status on which no legal effect is exercised according to the law. Although this status is contrary to the rule in Islamic law, it has significant examples in Islamic law. An examination in jurisprudential and legal books shows that scholars of jurisprudence and law have tried to reduce ...
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"Voidness" is a status on which no legal effect is exercised according to the law. Although this status is contrary to the rule in Islamic law, it has significant examples in Islamic law. An examination in jurisprudential and legal books shows that scholars of jurisprudence and law have tried to reduce the scope of this legal status and reduce its examples by creating institutions such as withdrawal of the contract, the principle of correctness and the theory of spiritual commonality. In this regard, according to the examples of correction of void contracts in Islamic law, we can reach a comprehensive and complete theory called "correction of void contracts", which on the one hand compared to similar comprehensive institutions and on the other hand It has far fewer problems than such institutions. Correction of a void contract means that a void contract is corrected by removing the invalid causes or changing and transforming the annulled elements of the contract.In this research, we intend to examine the aspects of this theory and to assess its validity in the balance of jurisprudence and law. The result shows that there is no serious problem in correcting a void contract from a jurisprudential and legal point of view, and this legal act can be considered as one of the legal theories along with other institutions limiting the scope of voidness.
AhmadReza Asaadinejad; Abdolhossein Shiravi; Mehdi Montazer
Abstract
In many Petroleum contracts, the parties put renegotiation clause in order to keep longtime balance, so that if the balance disrupted, the parties should be obliged to renegotiate in order to rehabilitate the contract balance. So if renegotiation process didn’t reach result, what will happen to ...
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In many Petroleum contracts, the parties put renegotiation clause in order to keep longtime balance, so that if the balance disrupted, the parties should be obliged to renegotiate in order to rehabilitate the contract balance. So if renegotiation process didn’t reach result, what will happen to the contract? Also in which circumstances the parties have right to recourse arbitration? Do arbitrators have the right to adjust the contract? In one side, keeping the balance was the first base of the agreement, and by disrupting the balance the continuation of contract would become unfair and in contrast with common intention, and on the other side, termination of the contract without party consent is impossible. In the absent of arbitration clause, one parties can recourse to the arbitration tribunal, so that the tribunal can arbitrate the case if it is deduced from implicit agreement or enforceable law that it has jurisdiction. In case of putting adjustment right for arbitrator, he can adjust it. otherwise, it can be understood from the first intention of the parties, economical logic, principles of international trade law and the principle of similarity of arbitrator and judge authorities that the arbitrator has right to use adjustment.
