Private Law
Mojtaba Eshraghi Arani
Abstract
The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to ...
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The simple method of transportation is that the cargo is loaded in port of delivery and unloaded from the same vessel in the port of discharge. However, there are frequent cases that accomplishment of the voyage requires the transfer of cargo to another vessel, whether to the same (sea vessel to vessel for instance) or another mode (sea vessel to vehicle, vehicle to aircraft, etc) which is called “transshipment”. Transshipment from a technical viewpoint, is a cargo management operation which along with other methods, including “Ro-Ro carriage” and “Cross-stuffing” leads to less cost in transportation. However, in the legal terms it might be deemed as “deviation” and a fundamental breach of the contract.Transshipment is either predicted by the parties to contract of carriage (bill of lading) or the fortuitous events in the voyage necessitate such operation. This issue is so important that not only in the bill of lading but also in the sale contract and letter of credit is dealt with and one must answer this question that in the case of no agreement on the transshipment, is such operation, in principle, allowed or not? Obviously, this operation brings about delay in the process of carriage and other risks like sea pollution (in the case of oil transfer) which affects the interests of not only the cargo owner but also other merchants including the LC issuing bank and even the state authorities like department of Customs. Therefore, this article is going to scrutinize the legal conditions under which the carrier is authorized to do transshipment in accordance with the international conventions and the particular contractual conditions like “liberty to transship clause”.Moreover, the consequences that such operation brings in terms of the liability and rights of carrier are dealt with in this article. These consequences are analyzed in two parts: when the transshipment is allowed and when it is not allowed. In the latter case, one should see whether the same impacts of deviation under maritime law are applied on trans-shipment so that the contract of carriage is frustrated and the carrier is deprived of invoking to liability exclusions and limitations (based on the international conventions) or some other peculiar consequences must be looked for. On the other hand, this article has analyzed the consequences of allowed transshipment in particular, whether the carrier liability ceases to continue after the transshipment or he is still liable for all damages; moreover, this issue is dealt with that whether the exclusion of liability clause for damages after transshipment is valid or not. Finally, the carrier entitlement to freight after the transshipment is discussed in this article further to the person who is liable for transshipment costs: carrier, shipper or consignee? According to the explanations given in this article, it can be concluded that despite the many risks caused by transshipment or the transfer of cargo from one device to another, this operation is an integral part of transporting goods in Many items have been converted. The advancements of the transportation industry, especially the container revolution, have helped to resolve the concerns of traders about the risks and costs of transshipment, so that the agreement between the buyer and the seller on the possibility of transshipment if the cargo is transported in a container, is recognized by the legislative authorities and the International Chamber of Commerce, a clear example of which can be seen in UCP 600 (Article 20).Not only transshipment is done under the strict control of government authorities to reduce the scope of fraud in relation to export, import and customs regulations, but in the private relations of the parties to the contract of carriage, the principle is that the transshipment is impermissible unless according to the explicit or implicit agreement of the parties or the procedure of the related business is that the transshipment is predictable and within the common intention of the parties, or that due to unforeseen reasons, the completion of the voyage depends on it, which in the latter case, the Iranian Maritime Law (Article 157) not only allows the captain but also obligates him to transfer the cargo by another means.Unauthorized transshipment, although according to the opinion of some jurists, it produces the same effects as "deviation" in maritime law, but the opinion that only considers it a fundamental violation of the contract of carriage and causes the right of termination and compensation for the cargo owner is in accordance and more compatible with the legal rules. In the assumption that the carrier is authorized to carry out these actions, the governing spirit of the international regulations of transportation as well as the Iranian commercial law indicates that the responsibility of the carrier remains after the transshipment, although the exclusion of liability clause for damages after that should also be legitimate under certain conditions.Also, it is concluded in this article that the costs of transporting the cargo by another means of transport due to the termination of the transport contract and according to the rule of the management of third party’s property (which is applicable in fortuitous transshipment) should be charged to the account of the owner of the goods, unless the incident is temporary and the carrier is in line with the execution of the contract has taken it upon himself. The same reasoning will apply to the carrier freight the carrier shall not be deprived of its outstanding freight due to transshipment.
Private Law
Reza Shokoohizadeh; Hani Hajian
Abstract
By holding a definitive judgment, normally the trial transfers from one phase of proceedings to the next one. For example, in the case of holding the judgment of non-acceptance of action or the judgment in the merit of the case by the court of first instance, the case enters in new phase by appeal of ...
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By holding a definitive judgment, normally the trial transfers from one phase of proceedings to the next one. For example, in the case of holding the judgment of non-acceptance of action or the judgment in the merit of the case by the court of first instance, the case enters in new phase by appeal of condemned party. In these cases, the trial transfers from one phase into another one according to evaluative effect of appeal. But holding the definitive judgment does not necessarily result in transferring the trial from one phase to another one. For example, in cases where the court of first instance’s injunction, would be invalidated by the court of appeal and consequently the case return to court of first instance, it could be recognized that the holding of the definitive judgment, by the court of first instance could not result in termination of one phase of trial and opening of a new one. Consequently, the trial which is pursued after reversal of any form of injunctions is regarded as continuation of former trial. It is noteworthy that pronouncing a judgment in merit of a case doesn't necessarily results in transfer of trial from one phase to another one. In fact, by reversal of a judgment by higher courts, it reveals that trial of inferior court had not been finished and it must be continued. Controversies arise between Iranian lawyers in respect of regarding rehearing as a new phase of trial or continuity of former trial. There are many evidences that confirm latter theory, including automatic reversal of contested award after rehearing of absent party or necessity of protection of procedural rights of parties in the first session of trial. For practical reasons, the second section of this article is dedicated to effects of continuity of trial on responsibilities of courts and rights and obligations of parties. In respect of first title, one of the responsibilities of courts is observation of reasonable deadline of trial. In this regard, if trial of first instance and rehearing proceedings is considered as a unique trial, the whole time of trial would be considered as criterion of recognition of reasonable deadline by the court. Accordingly, competence of court is affected by continuity of trial. In accordance with Art. 26 of Iranian Civil Procedure Code, the competence of court is evaluated in time of statement of petition. Consequently, in case of reversal of injunction of court of first instance by the appeal court, the competence of former court is measured by time of petition, not reversal of judgment or return of petition. Similarly, the impeachment of the judge may be affected by the continuity of trial. One of the main reasons of impeachment of judge in Iranian Law is former pronouncing on the merit of the case by the judge (Art. 91 Iranian Civil Procedure Code). Consequently, if we consider the retrial of the inferior court, after the reversal of the injunction by the higher jurisdictions, a new trial, the former proceeding may impede the judge from later hearing of the case. The continuity of proceeding affects the responsibility of court to form new session and to pronounce new judgment on the matter. If we consider rehearing as a new phase of trial, the judge must pronounce a new judgment and could not only uphold the former judgment. Additionally, the rights and responsibilities of parties may be affected by continuity of proceedings. In cases where the statement of petition is limited to a deadline, the continuity of proceeding affects the validity of petition. If we consider the trial of inferior court, after reversal of its judgment by higher court, as a new trial, the time of statement of new petition may consider as the criterion of acceptance of petition. The continuity of proceedings affects mainly the rights and obligations of parties in the first session of proceedings. In the case of continuity of an unique trial, reopening of a case in the same court, don't result in revitalizing the rights and obligations of the parties in the first session of the trial, because of fact that first session had been formed before the reversal of judgment. In contrary, reopening of a case in same court, in different phases does cause the revitalizing the rights and obligations of the parties in the first session of this trial.
Private Law
mahdi shahabi
Abstract
Louis Le Fur's thought should be seen as a symbol of the interaction of metaphysics and reality; The duality that finds another interpretation in Le Fur's language, that is, natural law and objective law. The requirement of the mentioned interaction is not to consider Le Fur's philosophical framework ...
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Louis Le Fur's thought should be seen as a symbol of the interaction of metaphysics and reality; The duality that finds another interpretation in Le Fur's language, that is, natural law and objective law. The requirement of the mentioned interaction is not to consider Le Fur's philosophical framework as rationalism or Kantian philosophy and to consider Aristotelian philosophy as the origin of Le Fur's thought. However, Le Fur's natural law seems to have taken its validity from the traditional rationality that is based on tainted wisdom; A rationality that can be considered as its inherent spiritual or spiritual illumination. Therefore, Le Fur's enlightenment should not be considered an experimental enlightenment, like the enlightenment of philosophers such as Petrazyski and GényIn his analysis of the basis of the validity of his natural law, Le Fur is so close to his contemporary traditionalists such as René Guénon that he states that man is the God`s Caliph. Any legal concept that does not consider the eternal soul of man in his analysis cannot be evaluated as a correct perception.However, unlike the same traditionalists, Le Fur does not give a role to revelation in the objectification of the concept of natural law and justice. He does not evaluate the transition from Catholic jurisprudence to Protestantism negatively. Le Fur's concern is the synthesis of metaphysics and reality.But, without a doubt, what Le Fur means by this metaphysics is not human metaphysics; rather it considers divine metaphysics. Therefore, one should not think about the transition from Catholic jurisprudence to Protestantism. We know that traditionalists like Guénon consider the transition from Catholic jurisprudence to Protestantism as the meaning of passing traditional rationality.Nevertheless, his belonging to perennial wisdom has not hindered his empirical methodological approach to the compatibility of natural law with the nature of things and has not led to Shari'a voluntarism as an all-round ideology.Apparently, it remains at the level of mere general ideology, and this generality, in addition to opening the way for Le Fur's experimental method, also leaves unanswered the fundamental question that when the divine legislative will has no role in detailing the perennial law, so in which direction perennial wisdom is supposed to guide a person?It seems that Aristotelian philosophy has clarified its task concerning perennial wisdom. By removing the divine legislative will, Aristotle practically accepts that evolution should be left to the hands of history and the passage of time; the approach and result that Le Fur has not been able to get rid of.The fact is that Le Fur's type of law is a symbol of evolutionary experience, and from this point of view, its basis should be sought in the nature of Aristotelian objects. It seems that these types of law fulfill the function of objectifying or objectifying traditional rationality. It plays a role in Le Fur's legal thinking. It is clear that such a position for the nature of things, in order to interact and synthesize with traditional rationality, is not acceptable in traditionalist thought such as Guénon.Interestingly, by adopting the experimental method, Le Fur also comes to the conclusion that there is superhuman rationality that guides the world; and that man is not only the mind; it does not just matter. Man is both material and mental, and for Le Fur, it is surprising why the experimental method of positivists is unable to see and verify such realities.Despite this, the result of the synthesis of Le Fur's metaphysics and empirical reality is very limited, and practically, perennial Le Fur's wisdom, from the perspective of a humanist view, will not seek a different interpretation of the nature of Aristotelian objects. In other words, by relying on it, you cannot be a watcher of Catholic jurisprudence. But, on the one hand, it is possible to avoid falling into the trap of the empirical illumination of philosophers like Petrazyski;The drawback of empirical illumination is that it does not open an evolutionary path for the transition from Sien to Sollen. There is a possibility that he may regress and sometimes evaluate slavery as favorable; it is difficult to separate it from public opinion and it leads nowhere.On the other hand, relying on Le Fur's thought, it is possible to establish a philosophy of law in which law is neither a captive of pure materialism nor is it caught in Kant's subjectivism, which synthesizes the hierarchical system of law with empirical reality does not wantA result can also be achieved in the framework of the nature of Aristotelian objects. According to its evolutionary approach, Aristotelian philosophy cannot deny the law of Le Fur and accepts it. Le Fur's thought in the field of contract does not have a different result compared to Aristotelian philosophy. In Le Fur's contract, like the Aristotelian contract, the principle of the sovereignty of the will is not the rule in order to result in a practically positivist justice.
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
ali pourrezaei; Ali Gharib; Hasan Pashazadeh
Abstract
Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company ...
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Today, one of the main players in the economy are companies. These entities are dependent on real persons to play their role, and these persons (directors) act as a member of the company's body. The importance of the company board of directors is that it can be called the executive branch of the company or the strategic government of the company. The management of the company's affairs according to the law and after that according to the will of the shareholders, has been entrusted to this organ, and following the assumption of this duty by the director, duties and powers as well as benefits have been defined for them according to the law, which are necessary for exercising the powers of the directors.Rulemaking in the field of duties and powers of directors in various legal systems is foreseen to achieve a goal that is in line with the goal of establishing the company. In fact, the purpose of establishing a company is to bring together multiple economic players with conflicting interests in order to achieve the common goal of making profit, and since the management of this group is entrusted to directors, the management goal must be determined and be available the necessary tools to achieve this common goal to them. Determining the general duties of directors through regulation is to determine the direction and create transparency for directors.PURPOSEIn this research, the main question is what policies the legislator pursues from regulation in this subject? And how did the Iranian and English legislators act in this regard? Also, this article tries to answer the above questions by descriptive-analytical method and comparative study of Iranian and English law.METHODOLOGYIn this research, a descriptive-analytical method with a comparative view has been used; In this way, first the general duties of directors are explained in in English and Iranian law, and then, with legal reasoning methods, The goals of establishing rules related to the general duties of directors in Iranian law are analyzed and examined.FINDINGSIn English law, the legislator has assigned a role beyond that of a trustee in the field of duties of managers. Therefore, it has predicted duties for the managers in order to achieve the three goals of "preventing conflict of interest", "protecting the company's interests" and "improving the company's status or improving the company's position".The first risk that arises in the relationship between the company and the directors is the misuse of their position in controlling the financial resources of the company, including property, reserves and credit. Therefore, considering the director as a trustee in the internal relations of the company and applying the guarantee of violation executions from this position can be very effective in solving the conflict-of-interest problem. This goal is provided by foreseeing the duty of avoiding the situation of conflict of interest and disclosing the acquisition of interest. One of the shortcomings of the legislation in this field in Iranian law is the failure to require managers to disclose the acquisition of profit. Of course, Article 129 of the legal bill to amend a part of the Commercial Law of 1968 in the transactions of the director with the company, foresees such a task for the board of directors, not the beneficiary director.The purpose of protecting the interests of the company is that the directors, by exercising the necessary care and caution, avoid losses to the company and the loss of its property, financial resources and reserves. This goal is achieved through various tasks. These duties include exercising independent votes or Duty exercise independent judgment, and Duty to act within powers. In Iranian law, by accepting the fiduciary duty for managers, we must accept that the goal of protecting the interests of the company is fulfilled to some extent.In the new law of British companies (2006), the legislator sought an approach to solve the problem of companies in advancing their goals. In this regard, the task of promoting the success of the company was predicted. The task of promoting the success of the company creates requirements for the director beyond the observance of trust, the non-compliance of which creates responsibility for the manager. In other words, the fiduciary duty creates a negative obligation for the director, but the duty to promote the success of the company creates a positive obligation. Positive commitment means improving the company's current situation.It can be inferred from the general duties of managers in English law that the goal of the legislator is to deal with the stagnation of companies and to oblige directors to make changes in their affairs, but this is not inferred from the total regulations governing the laws of Iranian companies.CONCLUSIONLike the English legislator in setting the general duties of directors, the Iranian legislator must pursue the three goals of "resolving the conflict of interest", "preserving the existing interests of the company" and "promoting the position of the company". The first two goals can be achieved despite the shortcomings of the directors' fiduciary duty, but the third goal is not achieved with this duty; because the duty of fiduciary is to maintain the current situation and its promotion needs to be regulated. In English law, the achievement of this goal is pursued with the task of "promoting the success of the company", but in Iranian law, the legislator has not paid attention to policy-making in this subject.Therefore, in amending the existing regulations, attention should be paid to the policy of promoting the company's position and existing status, and rules should be made in the field of general duties of managers according to Iran's legal system.
Heidar Piri
Abstract
Argument is live of law, explaining the correct way of legal reasoning is of great importance in deducting legal judgment. Sometimes, it is practically useful to prove a proposition indirectly rather than directly. Ad Absurdum Argument is a special mode of indirect proof by contradiction that seeks to ...
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Argument is live of law, explaining the correct way of legal reasoning is of great importance in deducting legal judgment. Sometimes, it is practically useful to prove a proposition indirectly rather than directly. Ad Absurdum Argument is a special mode of indirect proof by contradiction that seeks to establish a contention by deriving an absurdity from its denial.In legal theory, the ad absurdum argumentation is normally analyzed as a kind of logical reasoning. Reductio ad Absurdum is one of the main functions of reason in deducting various legal issues. According to historians, the origin of ad absurdum argumentation and its application in scientific controversies can be traced back to antiquity, i.e., the era of the Megarians and the Elias[1]. In fact, the use of argumentation ad absurdum as a valid form of reasoning comes from the ancient Greek mathematics and the expression "hê eis to adunaton apagôgê", meaning reduction to the impossible[2] or absurdity, and can be found in Aristotle. In the new logic, this argument is considered as a special form of reduction to the impossible. This is an indirect method of proof that requires the assumption of the contradiction of what one wants to prove (self-contradiction) and then deducing logical implications from this assumption that are inconsistent with each other.In contemporary literature regarding legal reasoning, two different types of ad absurdum argument have been recognized: the strictly logical form which rise to the introduction of proof by contradiction and the pragmatic. An example of the first ad absurdum argument can be judicial argument based on which it is absurd to accept that someone may be in a state of intoxication without having actually imbibed alcohol. Although someone who has drunk alcohol does not necessarily become intoxicated, it is meaningless to say that a person who is in a state of intoxication has not imbibed alcohol, because it is impossible that the intoxication state is not caused by drinking alcohol. The pragmatic type of ad absurdum argumentation is based on demonstrating that a given stance or interpretation, although in logical terms imaginable, is for some reason undesirable or unacceptable. An example of pragmatic version of ad absurdum argument is where a tribunal finds that, in a specific procedural situation, it is absurd to demand that a copy of a submission be delivered to the person that sent it. Although delivery in this situation is of course logically and physically possible, based on the common-sense principle, interpreting the law in this way would be absurd.Purposes and Research Question(s)The aim of this article is to analysis the nature, basses and structure of ad absurdum argument which have been used in the declaratory reasons of the courts. For this purpose, the questions which raises are that, what is the position of ad absurdum in inferring various legal issues? If we recognize ad absurdum arguments in law as a technique to help lawyers to reach their purpose, in what ways can it correctly be deployed in legal reasoning? And to what extent has this form of legal argumentation been used in legal documents and jurisprudence? In order to answer these questions, in this article, first it has been tried to explain how to use reductio ad absurdum in legal reasoning. Second, a set of brief instructions have been formulated in order to help lawyers and judges for justifying their pleadings or the basis of their decisions in such arguments. The main point of this effort is to state the basic and fundamental rules of interpretation, which can be derived from the structure of the ad absurdum argument and its main assumptions. By explaining such rules of ad absurdum argumentation, one can understand the normative importance of ad absurdum argumentation, i.e, the requirements that stem from this argument and the conditions to which a person can rely on as a stable and sturdy basis for legal decisions.MethodologyThe article has been performed based on the descriptive and analytical research method. The necessary data has been collected by library method.ConclusionBy following various opinions, it seems to be an inevitable conclusion that ad absurdum argument deals with interpretive and hermeneutic arguments that generally prevent logical errors and may be used only in specific cases. In addition, lawyers may use this form of reasoning to justify their decisions, because this argument enables them to avoid conflict between norms and conflict between results and consequences of applicability of these norms. The context in which reduction ad absurdum is used is a controversial argumentation regarding the proper interpretation of a legal document. The speaker analyzes his interpretation in the light of an alternative (second clause) which seems implausible. Therefore, the ad absurdum argument is always a comparative argument that has two core grounds, i.e., the traditional and ontological. The above analyzes lead us to the conclusion that the ontological basis of ad absurdum argument may replace the traditional ground based on the assumption of a rational legislator. This is primarily supported by the fact that the ground proposed have more internal consistency and provide similar benefits, such as the elimination of contradictions between norms and contradictions among their results. The ad absurdum argumentation grounds of universal rationality concept, allows us to use a more objective criterion to evaluate the level of absurdity than the traditional grounds based on personal rationality. Therefore, applying and controlling the ad absurdum argument is easier, and the risk of using discretionary power will be reduced as well.The analysis above shows that there is an essential common ground between the ad absurdum argumentation and the assumption of the rational legislator. The principal basis of these two forms of argumentation can be found in the principle of reasonableness and rationality which intend to supply a normative standard for legal reasoning. The rational legislator and ad absurdum argumentation are both normative structures that require the interpreter to fix the meaning of a norm in a sense that is rational and reasonable. What is clear is that the interpreter is responsible for the rationality of the law and not the rational legislator. In fact, an interpreter (a judge or lawyer) cannot determine what is reasonable without determining what is absurd, for these predicates are correlatives in the sense that whenever one is present, the other will be absent.
International Trading
Sara Aghaei; Tayebeh Saheb
Abstract
One of the obligations of the carrier in sea transportation contracts is to follow the contractual route or the appropriate route, the violation of which can deprive the carrier of some contractual rights. Usually, in the contract of carriage or in the bill of lading, the appropriate route for the sea ...
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One of the obligations of the carrier in sea transportation contracts is to follow the contractual route or the appropriate route, the violation of which can deprive the carrier of some contractual rights. Usually, in the contract of carriage or in the bill of lading, the appropriate route for the sea voyage is specified, and if it is not determined, the direct geographic route between the loading port and the unloading port is considered the appropriate route. In cases where there is more than one geographical direct route, the most common route is considered the appropriate route. Deviation of the ship from the contractual route or the appropriate route is one of the most common and common violations in marine transportation contracts, which is known as a serious action in maritime transportation by having effects such as the lack of obligation of the insurer to compensate for damages since the deviation from the route occurs. In maritime transport contracts, the parties seek to include terms that can flex the rules governing the agreement and the effects of breach of obligation. The condition of freedom in deviating from the route is included in the contract as a legal solution to neutralize the effects of the ship deviating from the route in favor of the transport operators. The mentioned condition is known as a correct condition in the law of England and America. In English law, the condition of freedom in deviating from the route has legal validity, but at the same time, the said condition should not provide grounds for the carrier's violation and evasion of responsibility. Therefore, in most cases, by measuring the possibility of invoking the said condition based on the standard of reasonableness of the deviation, they explain the possibility of invoking the condition and the scope of its application.In American law, the condition of freedom in deviating from the route is recognized as an exemption from liability and as an exception to paragraph 2 of article 3 of the 1936 Maritime Law. In this legal system, the possibility of including the condition of freedom in deviating from the route in favor of the carrier is recognized by the agreement of the parties in the contract. In order to provide an interpretation with the aim of proving the compatibility between two different and apparently conflicting articles in the discussion of the liability of the carrier, the American jurists considered the exemption from responsibility based on the condition of freedom to deviate from the route as an exception to the primary responsibility determined in paragraph 2 of Article 3 are In fact, contrary to the English legal system, in which the condition of freedom is viewed as a matter for explaining the territory of the contract; The American legal system places it in the list of exceptions to the responsibility of the carrier.The reasoning of the American courts in facing the cases related to the deviation of the ship from the route, in which the condition of freedom in favor of the carrier to change the route is included, expresses the acceptance of the views of the lawyers and the alignment of the courts in the way of interpreting the articles of the 1936 Law of Sea Transportation of Goods.Examining the validity and legal position of the condition of freedom in deviating from the route in Iranian law requires that the question related to the validity or invalidity of the said condition be answered first, and then, assuming it is true, the effect of this condition on the contract and the responsibility of the carrier should be examined. The explanation of the correctness or invalidity of the condition of freedom in deviating from the route depends on the nature and type of obligation of the carrier and its exclusion from the scope of the cases that are known as invalid conditions in the general rules of contracts.In Iranian law, taking into account that the cases of justified deviation from the route have been specified in paragraph 4 of article 55 of the amended Iranian Maritime Law of 2013, the question is raised that any change of route based on the condition stated in the contract and outside of the cases mentioned in the last article Is it illegal? In fact, this question should be answered that by specifying the sea voyage route in the bill of lading and allocating one of its clauses to the condition of freedom to deviate from the route, are there two conflicting clauses in the contract or bill of lading? Clause 4, Article 55 of Iran's Maritime Law, is a regulation that explains the scope of application of the condition of freedom to deviate from the course by taking into account its provisions, and the validity of the condition of freedom to deviate from the course, as well as the limits and loopholes of its application, is examined according to the principles of interpretation of contracts. will be One of the most important principles of interpretation used by the courts is the interpretation of the contract as a whole unit. This means that if in the transport contract or bill of lading, there is a specific route to carry out a sea voyage and in another article, the condition of freedom to deviate from the route agreed upon by the parties, using this method of interpretation that the courts are required to apply, the interpretation of the contract must be It should be done in a way that all its components and conditions are considered validThis research has explained the validity of the condition of freedom for deviating from the route in sea transportation contracts with analytical-descriptive method and using library data.Key words: condition of freedom, unreasonable deviation, appropriate route, maritime transport contract, carrier's obligation
Private Law
Issa Moghadam
Abstract
Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the ...
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Simultaneous employment in companies and other competing agencies can be considered from different point of view. One of these is to examine it from the point of view of its conflict with competition, which is examined in competition law. Considering the important impact that competition has for the progress of society, supporting competition through the adoption of effective regulation is one of the duties of governments. Supporting competition through legislation is done in different ways, one of which is the introduction of anti-competitive behavior. In relation to simultaneous employment in competing companies, the main question that arises is whether this behavior is anti-competitive or not? And on the assumption of contradiction, is this contradiction enough to require prohibition by the legislator. Although the role of simultaneous employment in competing companies for commercial and industrial progress cannot be completely denied, there is no doubt that it increases the possibility of information exchange and collusion between competing companies in various fields such as product pricing and as a result, it causes the competition between these companies to be reduced or eliminated. Therefore, it has been recognized and prohibited as anti-competitive behavior in the laws of Iran and the United States of America. In addition to the main question above, several secondary questions are also raised in this context, which are: Should the ban be applied to all companies or some of them, which is more important? Should the prohibition only apply to directors and officers of the company or all employees? Should this be absolutely prohibited or only if it disrupts competition? What is the criteria for considering two companies as competitors? The basic principle in relationto determining the scope of prohibition of simultaneous employment is that the prohibition should be established as much as necessary and have a minimal aspect. Regarding this issue, regardless of some similarities, there are important differences between the two countries, some of the differences are due to the different approaches of the two countries to fight it and it is normal, but in Iran's regulations, on the one hand, the domain of agencies and individuals who are subject to the act , it is expanded in an unusual way, and on the other hand, the criteria provided for the conditions of competition realization and the concept of competing companies are not very precise, which makes it less effective. In addition to the point of competition, this issue can also be investigated from the point of view of the legal relationship of a person with the company in which he is employed. Because when a person is employed in a company, certain duties and obligations are created for him in order to strive for the success of the company and refrain from doing contrary behaviors, and the question is whether working at the same time in a rival company is contrary to these obligations? There is a possibility that in the employment contract, a person is prohibited from competing with the employer, in which case she will adhere to the condition, but if such a condition is not included, the matter needs to be investigated. There is no regulation in this regard in the studied countries. In American law, according to the rules of common law, this is contrary to the fiduciary relationship of a person with the company, as well as contrary to his duty of loyalty to it, and is prohibited. It should also be considered prohibited in Iranian law, because employment in a rival company can lead to behavior contrary to the interests of the first company. It is important to point out that there is a difference between the two mentioned states. Prohibition of simultaneous employment in competing companies due to its anti-competitiveness is intended to protect the community and is related to public order and has an imperative aspect and cannot be agreed upon. While it is prohibited from the point of view of conflicting with the relationship between the person and the company, it is to protect the rights of the company and is not related to public order, and an agreement against it is possible. Because this may have positive effects in some cases, such as when two companies cooperate in some fields.
