Private Law
Seyed Hossein Safaii; Danial Bakhoda
Abstract
Nowdays, the doctrine of legitimate expectations is considered as one of the most important bases for identifying contractual and non-contractual rights and obligations. Although in Iran’s legal system and Imami jurisprudence, there are several rules such as the Esalate Erade Zaheri, Ghaede Ghorour, ...
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Nowdays, the doctrine of legitimate expectations is considered as one of the most important bases for identifying contractual and non-contractual rights and obligations. Although in Iran’s legal system and Imami jurisprudence, there are several rules such as the Esalate Erade Zaheri, Ghaede Ghorour, Delalate Fahva and the principle of the Apparent Authority to some extent provide the purpose of protecting legitimate expectations, but the lack of a general rule in this field is noticeable. Based on this rule, whenever the behavior of a person or a public official creates a reasonable belief in the collective mind of the society, this belief is the basis for establishing a recognized right and capable of protection. Therefore, as a prelude to establishing a general rule, the legitimacy of expectations and the permission of trusting to appearances must be proven. In the principles of Islamic jurisprudence, asala al-zohoor has a long history for the permissibility of relying on the appearances of people's words, but there is doubt about the inclusion of the principle in appearance regarding the appearance of people's circumstances and actions, especially due to the lack of explicit presentation of this type of appearances in basic books, challenges proving the doctrine of the legitimate expectations. As a general rule in this context, it can be said that if the possibility of a contradiction, which the appearance of the present entails, is created in the mind of the audience after the action according to the preferred belief, the impression created is valid and the resulting expectation is a legitimate expectation. And it is considered worthy of support, especially where the theologian is in the position of creating meaning and concept in the audience's mind. Among legal theorists, it appears that the theory of legitimate trust was first introduced by Emmanuel Lévy as the foundation and purpose of law. According to Lévy's theory, since the foundation of social relations is based on trust and the collective belief of individuals in society constitutes public trust, the law should serve to ensure and protect legitimate collective beliefs. Therefore, these beliefs are the basis for determining the rights and duties of individuals in society. In this view, Lévy believed that the law should be capable of evolving on its own, and when legitimate collective beliefs form the basis of the law, the law can align with societal changes and progress alongside the evolution of collective beliefs.In Iranian law and Imami jurisprudence, it is evident that while discussions on the philosophy of responsibility are extensively covered in some texts, the necessity of protecting legitimate trust is not explicitly mentioned. Nevertheless, one can find instances in the language of jurists and legal scholars that indicate support for the protection of legitimate trust. For example, *tadlīs* (fraud) and *ghurūr* (deception) are two different ways of compensating the damage suffered by a person whose legitimate trust has been violated. An examination of the cases related to these two principles confirms that they were precisely established with the aim of protecting legitimate trust.The content of the principle of warning (Tahdhir) exempts a person from liability when they have provided the necessary warning to those at risk while engaging in legitimate harmful behavior, even if the injured party fails to understand the warning due to reasons not attributable to the person giving the warning.By examining instances of the principle of protecting legitimate trust, the following definition can be inferred: Whenever the behavior of an individual or public authority creates a reasonable belief in the collective conscience of society, this belief is recognized as a basis for establishing a right that deserves protection. This protection may take the form of either the non-liability of the person holding the belief or the contractual or non-contractual obligations and liabilities of others toward the person holding the belief. In other words, if a person's behavior creates a reliable appearance and another party, relying on this appearance, acts in a way that does not align with reality, then the person who created the appearance is either bound by the appearance they created and must respect the rights of the other party in accordance with that appearance, or they are obligated to compensate for the damages resulting from the discrepancy between the appearance and reality.
International Trading
Maryam Farsi; Hamidreza Oloumiyazdi
Abstract
Although the party autonomy plays a greater role in arbitration compared to the law, the legitimacy and popularity of arbitration exists as long as the administration of justice is not distorted by the parties' agreements and free will. One of the most obvious manifestations of party autonomy in arbitration ...
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Although the party autonomy plays a greater role in arbitration compared to the law, the legitimacy and popularity of arbitration exists as long as the administration of justice is not distorted by the parties' agreements and free will. One of the most obvious manifestations of party autonomy in arbitration is the freedom of the parties to appoint an arbitrator. In fact, one of the main reasons that the parties choose to use arbitration over other dispute resolution mechanisms is that they are given the opportunity to choose their own arbitrator. On the other hand, the arbitrator's power to arbitrate comes directly from the right of the parties to appoint the arbitrator, and makes the party appointment of the arbitrator an important and decisive step. However, contrary to principles, the parties are more focused on appointing an arbitrator who supports their interests in the best way possible in disputes and, in other words, plays the role of their lawyer for them. Therefore, although the arbitrator is obliged to observe the principle of independence and impartiality, the parties generally do not choose him impartially. For this reason, the unconditional application of party autonomy in the appointment of the arbitrator may adversely affect the legitimacy and authority of the arbitration. Especially when the parties rely on their previous experiences or their lawyer’s experiences to ensure the impartiality of their appointed arbitrator, this concern is exacerbated. In other words, when a person has a history of appointing an arbitrator in another case and is satisfied with his choice, he prefers to choose the same person as an arbitrator again in order to increase his chances of success in the next arbitration. In addition, Unfortunately, in such appointments, the repeated arbitrator may, with the motive of increasing the chances of his appointments in the future by the same person, instead of acting based on justice and justice, tend to be biased and get the satisfaction of the appointer. For this reason, "repeated appointment of an arbitrator" is one of the cases that, regardless of its real impact, can cause justifiable doubts about the independence and impartiality of the arbitrator, as well as the credibility and legitimacy of the arbitration, due to its biased appearance. Limiting the dubious appointments of arbitrators by the parties, by minimizing doubts about their impartiality and independence, increases the validity of awards and the legitimacy of the commercial and international investment arbitration regime.
Considering the role and position arbitral institutions have in protecting the arbitration and monitoring the good implementation of the process, they try to create a reasonable balance between respecting the parties’ autonomy and the legitimacy and integrity of the arbitration. However, the rules of the arbitral institutions, especially in the field of repeated appointments, do not have clear provisions and in general, they foresee two ways of disclosing questionable conditions and the possibility of challenging the arbitrator in the event of "justifiable doubt in the independence and impartiality of the arbitrator". Unfortunately, the generality and lack of clarity of the subjective test of "reasonable doubt" without guidance regarding its possible examples, as well as the lack of publication of the institution's reasoned awards regarding how to deal with this sort of appointments, has caused confusion in how to deal with repeated appointments and needs to be revised.
By analyzing the direct and indirect adverse effects of repeated appointments on the integrity of the issued awards and the legitimacy of arbitration, this article describes the non-transparent positions of arbitration institutions in this regard and subsequently suggests that, firstly, arbitration institutions should reduce the existing confusion by setting clear objective rules for disclosure and how to deal with suspicious conditions, and also strengthen the credibility of arbitration and related organizations. In this regard, arbitration institutions can prevent conflicts of interest as well as objectify the test for disqualification of repeated arbitrator by developing a professional code of ethics for arbitrators with a more detailed reference to the duties of arbitrators in respect of independence, impartiality and disclosure of suspicious cases, and also avoid spending extra time and money on challenging arbitrators. Secondly, it is suggested that the arbitration institutions monitor the party appointments of the arbitrators in order to prevent damage to their credibility as well as the quality of proceedings and the legitimacy of the arbitration. In such a way that the appointment process includes two stages of nomination of the arbitrator by the parties and its approval by the arbitration institutions. This sort of two-stage appointment, which is recognized in some institutions, in addition to respecting the party autonomy, also guarantees the implementation of justice to some extent.
Private Law
Mohammad amin Esmaeilpour; fatemeh ghanad; shahab Jafari Nedoushan
Abstract
Traditional methods of resolving commercial disputes by arbitrators, due to the expansion of electronic transactions and a large volume of documents, diminish the speed, accuracy and efficiency of arbitration. Also, dealing with complex issues, arbitrators face many problems in separating documents and ...
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Traditional methods of resolving commercial disputes by arbitrators, due to the expansion of electronic transactions and a large volume of documents, diminish the speed, accuracy and efficiency of arbitration. Also, dealing with complex issues, arbitrators face many problems in separating documents and documents based on the type, credibility, and estimation of the evidential value of specific evidence, and this can make the process long and costly. The purpose of this article is to investigate the impact of artificial intelligence methods in the process of authenticating arbitration evidence and to answer the question of whether artificial intelligence systems, by using modern methods or algorithms, have an effect on facilitating or speeding up the process of validating the documents of the parties in dispute resolution. Is it enough to rely only on the findings of artificial intelligence in the validation of evidence? This article proceeds with a descriptive-analytical approach and after analyzing the issue, it concludes that artificial intelligence using advanced methods such as unsupervised or supervised machine learning, reinforcement learning and the use of natural language processing in the process of handling and validating evidence in arbitration Artificial intelligence facilitates and accelerates the authentication process through the following steps:
Classification: Classification of documents based on type and nature, for example, which of the presented documents are normal and official.
Ranking: separation of documents based on validity, for example if the evidence of one side is a testimony and the evidence of the other side is a normal document.
Case-by-case review of documents: Case-by-case review of documents based on their probative value is also important. For example, the normal document presented by the parties to resolve the dispute is valid and its value is indicated by a number.
Another application of artificial intelligence systems is the analysis of images and videos that identify changes in content over time and highlight key and important points in identifying the authenticity of files. The use of machine learning and biometric methods, in Determining the identity of the speaker, identifying forgery or manipulation in audio documents, evaluating and interpreting emotions are effective. Since artificial intelligence algorithms will be updated and more advanced over time, they may encounter problems and mistakes in the review and evaluation of some audio documents containing different accents, which is one of the challenges and limitations of this The method is.
It will be difficult to design and build artificial intelligence algorithms to resolve arbitration disputes and to implement it, especially in countries that do not have laws and regulations specific to this new way of proceeding. In this regard, drafting laws and regulations in the field of artificial intelligence and arbitration is of great importance. Considering that laws and regulations are constantly changing and evolving, it is necessary for programmers and designers of artificial intelligence tools to be familiar with laws and regulations and technical disciplines. Because artificial intelligence algorithms must be able to adapt to the daily needs of society. Otherwise, the arbitration and validation of the evidence will not be in accordance with the current and active laws, and this will lead to dissatisfaction and mistrust of the public. On the other hand, the construction of artificial intelligence and long-term programming will require a large budget, and it is essential that the government and private companies do not hesitate to provide any kind of material and spiritual support, because the huge transformation in the handling process using artificial intelligence requires extensive financial support. The implementation of such a plan in countries will ultimately lead to the facilitation and acceleration of the process of handling and will reduce the exorbitant costs of traditional methods, so the benefits of using artificial intelligence in arbitration will be more than traditional methods. The strengthening and development of artificial intelligence algorithms according to the requirements of the time and the daily needs of the international community and the supervision of a human referee according to the challenges ahead are necessary in the process of verification of documents.
One of the novel points of this article is to investigate the role of artificial intelligence methods in the evaluation of documents, which are sometimes ignored in the traditional methods of dispute resolution or judicial process, due to lack of expertise.
International Trading
niloofr parsa
Abstract
Bitcoin is the most important and well-known form of digital currency that is not produced or supported by any single entity. A decentralized digital currency has no central bank or unified management, its production is decentralized, and its value comes only from the fact that there is a growing community ...
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Bitcoin is the most important and well-known form of digital currency that is not produced or supported by any single entity. A decentralized digital currency has no central bank or unified management, its production is decentralized, and its value comes only from the fact that there is a growing community that ascribes value to it and chooses to use it. Pay innovative deals. However, its importance is increasing, especially in the field of e-commerce. The main purpose of this article is to examine the consumer's right of withdrawal, as stated in the Consumer Rights Directive (Directive 2011/83/EU) and in Article 37 of the Electronic Commerce Law 2012. Is. In particular, it examines whether consumer payment using bitcoins can be an obstacle to consumer protection, given the right of withdrawal provided by the above directive and law in cases of distance and off-premise contracts. In addition, the consequences of exercising the right of withdrawal are examined, particularly in relation to reimbursement. The main concerns stem from the disputed legal nature of Bitcoin and the high volatility of its value and the ban on its exchange.
The impressive growth of consumer protection during the last two centuries has been beneficial in creating rights for the consumer, including the right to withdraw from the completed transaction. In most legal systems, in electronic contracts, the consumer has the right to withdraw from the contract, which is one of the exclusive institutions. Iran's e-commerce law is the consumer's right of withdrawal. The right of withdrawal is a right that is intended only for the consumer according to the e-commerce law and can apply to any remote transaction (European Central Bank in its 2012 report on currency schemes). Virtual has defined a type of digital currency that is issued and usually controlled by its developers and is used and accepted among members of a specific virtual community (MiCA) published "Crypto-assets are digital representations of value or rights that can bring significant benefits to market participants, including retail holders of crypto-assets, among all types of virtual currencies, undoubtedly the most important and The most well-known is Bitcoin. Its importance in e-commerce is steadily increasing as more online merchants accept Bitcoin as a means of payment. Although the transaction volume of Bitcoin is still small compared to the transaction volume of sovereign currencies, several institutions such as the European Central Bank, the European Banking Organization and the Bank of France have issued warnings about the use of Bitcoin. In this regard, in the case of e-commerce, there are concerns about the lower level of consumer protection.
This article focuses on the issue of consumer refund rights according to the provisions of Directive 2011/83/EU (Consumer Rights Directive) and Article 37 of the Electronic Commerce Law of 2012. In particular, it will be examined that according to the right of withdrawal provided by Articles 9-16 of the Consumer Rights Directive (Consumer Rights Directive) and Article 37 of the Electronic Commerce Law of Iran 1382, in cases related to remote transactions. Whether a consumer's payment with Bitcoin can be a barrier to consumer protection, in addition, the consequences of exercising the right of withdrawal will be examined, particularly in relation to refunds. The main concerns stem from the disputed legal nature of Bitcoin and the high volatility of its value.
This article is mainly organized in three parts. First, an overview of the technical structure and functionality of Bitcoin is provided. In addition, it examines whether Bitcoin can be considered money from an economic and legal perspective. Next, it deals with the consumer's rights regarding information and withdrawal in accordance with the European directive and the e-commerce law. It then specifically examines whether paying with Bitcoin can deprive consumers of the right to withdraw and, if not, what the consumer's right to a refund should include.
Money is a social reality because money is an intermediary of exchange that forces the parties to deliver goods or services. Digital currency is a type of electronic money designed for greater security, elimination of intermediaries and anonymity. Cryptocurrencies are decentralized types of digital currencies that have been presented with new technology. Digital currencies need to be carefully examined due to the many complexities surrounding them. Bitcoin (in English: Bitcoin) (abbreviated: BTC; symbol: ₿) is a decentralized digital currency, without a central bank or unified management, that can be sent peer-to-peer through the Bitcoin network without the need for an intermediary. In simple words, this currency is a digital currency like the common currency of countries and its main function is to make financial exchanges between people. The general function of this currency is similar to the US dollar and the Iranian rial. But there are also important differences between this currency and currencies like the dollar. One of the most important differences is that this token was not created by governments and financial institutions and has no support other than public acceptance. Some consider virtual currencies to have no support and physical existence, and due to the disadvantages of Bitcoin, they have predicted that it will be devalued in the future.
This currency is generated and works by a mathematical algorithm. In this digital currency, the task of recording and maintaining transactions is the responsibility of computing devices that are also in charge of production. The mathematical algorithm of this currency is actually an encrypted technology based on the blockchain, which maintains the privacy of users while providing network transparency. This means that despite the possibility of anonymity in the network, all users have access to the details of transaction information
The shock caused by the price and volume of Bitcoin transactions should be considered as an indicator for the demand for virtual money. The results show that with the increase in demand for virtual money, the demand for official money has decreased, inflation has decreased, and as a result, the government's royalty income has decreased due to the decrease in the government's ability to create money and create an inflationary tax. According to the obtained results, it is suggested that taking into account the relative increase in the trend towards virtual currencies such as Bitcoin, the attention of the policy makers is inevitable and therefore the government and the monetary authority should create a platform for the use of virtual currencies in the area with high security through Creating the required infrastructure to provide d. The monetary policy maker should take advantage of technical innovations such as encryption, which has led to some of the technical advantages of virtual currencies, and direct this flow to the optimal direction with initiatives such as the release of the national currency code (Rial Code 1) and on the other hand to monitor the mechanism. promote and regulate this type of money. In any case, studies related to the economy of digital money (both electronic money and virtual money) and the mechanism of issuing and regulating digital money by the central bank and the challenges of expanding private digital money or private cryptographic money The central bank and other economic institutions of Iran should be taken into consideration.
Private Law
Ahad Gholizadeh Manghutay
Abstract
In various Commerce Act articles use of some rights are limited to a particular period, without determining whether that is time lapse or not. For example, bankruptcy judgment issuance of a merchant who has died in a bankruptcy state, revocating transactions prior to merchant’s payment suspension ...
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In various Commerce Act articles use of some rights are limited to a particular period, without determining whether that is time lapse or not. For example, bankruptcy judgment issuance of a merchant who has died in a bankruptcy state, revocating transactions prior to merchant’s payment suspension if include extensive loss, asking annulment of executive manager or director’s board members’ transactions with company, and asking Judgment against endorsers and their sureties for special commercial documents payment depend on adhering a defined period/periods. Besides, only in a special period consignee can setup and demand for non-apparent damages and petition for a general, proportional or limited partnership dissolution which one of its partners has died or incapacitated depends on disagreement with company’s continuance within a fixed period. If all above periods were time lapse we could obey non of them because Guardian Council has abrogated time lapse in civil (including commercial) matters. This experimental research analysis shows time lapse is for a manner right principally exists legally and flows but Legislature setting period prevents its flow whereas in some of above cases right is created exceptionally and within that particular period (time span). Right’s time span in comparison has particular rules.
Private Law
Saeed Bigdeli; Akbar Osanlou
Abstract
In the laws of both Iran and France, the fundamental elements required for the formation of contracts and the sanction for their absence have been discussed. The overlooked sections have also been supplemented by legal scholars and jurisprudence. Nevertheless, the necessity or lack thereof for the existence ...
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In the laws of both Iran and France, the fundamental elements required for the formation of contracts and the sanction for their absence have been discussed. The overlooked sections have also been supplemented by legal scholars and jurisprudence. Nevertheless, the necessity or lack thereof for the existence of the conditions and elements that form contracts throughout their duration has neither been explicitly and comprehensively addressed nor independently discussed in the laws of the two countries. Consequently, the issue has not been examined as thoroughly as it deserves by legal scholars and jurisprudence, and many aspects remain vague and ambiguous within the judicial systems of both countries. Nonetheless, a general rule has emerged in this area as a principle: after a contract is validly concluded, logically, the absence of necessary elements for its formation does not lead to its lapse, just as the death or the lack of capacity of a person or a retraction of intent and consent does not affect the fate of the juridical act. However, it seems unlikely that this rule has no exceptions. Among the questionable cases is the impact of personality or characteristic decline on contracts whose contracting party's personality was the primary reason for the concluding the contract.
The debate over the significance of personality in the formation and durability of personal contracts—referred to as "intuitus personae"—is a controversial issue in personal contracts. A crucial question here is the impact of the breach of the intended personality of the contracting parties at the time of the contract's conclusion and its disappearance during its execution. In other words, if the personality of one party or specific characteristics and abilities were central to the intent and will of the contracting parties at the time of the contract's conclusion, and later turns out that the intended individual lacked them or that a mistake occurred regarding the intended personality, what would be the implications? Likewise, on the ground of the centrality of the person's identity or capabilities, what would happen to the contract if the person dies or those characteristics are declined during the contract's execution?
The term " intuitus personae," which signifies the strengthening of personal bonds in obligations, is a concept among the general contractual rules that practically has been overlooked by the civil laws of Iran and France, and a few regulations can be found to refer to it. The only explicit legislation in this area in both countries refers to the nullity of a contract in the case of a mistake regarding the other party's personality, provided that the importance of personality is such that it was the primary cause of the contract; Article 201 of the Iranian Civil Code and Article 1134 of the French Civil Code address this issue under the topic of mistakes.
In France, significant initiatives have been undertaken by legal scholars to clarify the juridical act described as " intuitus personae " from the ambiguity surrounding it. What is agreed upon in French doctrine is that the contract lapses when the abilities and characteristics of the contracting party are central and it is proven that those abilities and characteristics are declined. Yet, there is no doctrinal or judicial consensus on describing the legal situation created by the decline of a person's identity or personal abilities: terms like "dissolution," "retroactive termination", "non-retroactivity termination", "canceled", " and "lapse" are all used to describe the extinction of juridical act in personal obligations in French law. This is equally true in Iranian law, where terms such as "dissolution," "disappearance," and " canceled " have been mentioned in similar contexts.
Therefore, considering the importance of personality in these types of contracts on one hand, and the silence of the legislator regarding their disappearance on the other in both understudied countries, the main objective of this study is to examine the fate of contracts when the condition regarding personality at the moment of contract formation is lost or it declines during the life of the contract in both French and Iranian law. Accordingly, we seek to find answers to several main questions: first, what are those personal contracts, and in what cases might contracts be disrupted due to the lack of a central personality or disruption thereof? Second, what is the proposed solution regarding the decline of personality in personal contracts under French law, and can this solution be extrapolated to Iranian law? Additionally, the practical effects of the sanction and its impact on analyzing the outcomes of the discussed contracts is another important question we aim to address.
As a presumption, it seems that personal contracts vary between objective and subjective ones, with some being inherent to certain contracts while others stem from the desires and wills of the contracting parties.
Moreover, in French law, the concept of "caducité"—which has recently been incorporated into recent modifications in the civil code—has received considerable attention in describing the fate of juridical acts in contracts and obligations formed with consideration of the person or their abilities. According to Article 1186 of the new French Civil Code: " A contract which has been validly formed lapses if one of its essential elements disappears." Thus, from the perspective of many legal scholars, whenever the identity of the parties or the capabilities of the executor becomes a part of the contract and acts as a determining element of consent or the subject of the obligation, it will face the consequence of caducité. The same approach, although it had precedents in the jurisprudence of France before the adoption of the new Civil Code, has been strengthened by the new law and is now the prevailing approach in current jurisprudence in that country.
This theory seems extendable to Iranian law, both because it has rational and legal supports in Iranian law and because other conceivable sanctions share similar issues with the French legal system, as well as due to the positive practical effects of the theory.
Therefore, it is suggested that the Iranian legislator, in the section on general contract rules, while recognizing the sanction of the caducité of contracts as one of the effects of breaching the essential elements of the validity of contracts, and as the absence of the essential elements of the contract at the moment of its formation leads to the contract's nullity, affirm the fundamental nature of personality and personal aspects in personal contracts, and explicitly state that the disappearance of the essential elements of the contract during execution also leads to its lapse.
Private and Islamic Law
Mohammad Abedi; Morteza Rahimimomen
Abstract
The purpose of approval building pre-sale law approved in 2010 is to provide protection and secure the rights for buyers, subsequent buyers and third parties. According to article 9 of the law, seller is held responsible for damages caused by defects in the building and its equipment and also non-compliance ...
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The purpose of approval building pre-sale law approved in 2010 is to provide protection and secure the rights for buyers, subsequent buyers and third parties. According to article 9 of the law, seller is held responsible for damages caused by defects in the building and its equipment and also non-compliance with legal regulations and laws. Furthermore, insuring the building is mandatory. Questions arise about the nature of responsibility in terms of contractual and Non-contractual and the possibility of combining or selection of the two, the scope of the damage caused by a defect, combining of the mentioned law with regulations option of defect and effects and provisions of liability insurance. This research using a descriptive analytical method intends to prove that the seller's liability for any losses, regardless of the existence or absence of a contract can be fulfilled and he/she is responsible for the defect and the damages that were caused by the defect and compensation method for both cases is subject to the general rules of responsibility and the provisions of the option of defect cannot be applied here. Also, the compensation of each injured party is paid by compulsory liability insurance within the framework of the insurance contract and after the payment of compensation, insurer can refer to the person who is held responsible for the accident and is not covered by the insured person.
The main issue in this research is the liability for damages caused by defects in buildings and equipment in the building pre-sale law. There have been good researches about the manufacturing defect and the damage caused by it, but in none of them, the damage caused by the construction defect has not been specifically analyzed considering the pre-sale law of the building.
Regarding damages caused by buildings, animals, and vehicles in Iran's legal system, there are legal precedents that precede the pre-sale law of buildings, and it is appropriate to pay attention to these laws when discussing the concept of damage caused by building defects, in order to use the basics. They and generally benefit from the general rules of liability caused by the object, to provide a better interpretation of the damage caused by the defect according to the pre-sale law of the building.
According to Article 9 of the Building Pre-sale Law, the pre-seller is responsible for damages caused by defects in construction and equipment, as well as damages caused by non-compliance with legal regulations. While there is doubt about the scope of the concept of damage caused by the defect and the combination of the said sentence with the provisions of the civil law. In addition, the scope of the responsibility of the seller has gone beyond the defects of the building and equipment and has been expanded to the damage caused by non-compliance with the legal equipment. Considering that the word damage is used in its absolute meaning, it can include all types of damage: damage to property, moral damage, physical injury and also economic damage; Therefore, it is necessary to check the inclusion of the building pre-sale law for each type of damage.
One of the most important issues in the discussed field is the nature of liability for damage caused by building defects. The responsibility of the pre-seller may sometimes be caused by breach of contractual obligations and have a contractual nature. But sometimes there is no contract in the field of damage caused by construction defects in the relationship between the seller and the buyer, and sometimes the third parties who suffer damage due to the construction defect do not have any contractual relationship with the seller, and therefore the responsibility is non-contractual. Here, the pre-sale law of the building makes the pre-seller responsible for damages, without the basis of this responsibility being clarified. In addition, the legal requirement for the seller to obtain liability insurance is foreseen, which must be studied in its nature and effects as well as the insured beneficiary.
The pre-sale law of the building has protected the pre-buyer and third parties against the damages caused by the defect. Regardless of the fact that due to the existence of a defect, the injured party suffers economic loss, or the defect becomes the source of other losses. The study of Article 9 of the aforementioned law shows that a defect is any defect that causes a reduction in price or a reduction in conventional use; Whether it is in the building itself or the equipment used in the building, even non-observance of the legal regulations that will reduce the price of the building or reduce the conventional utility is also guaranteed. Defects or defects that cause the positive property of the contracting party not to increase or his negative property to increase are considered as economic loss and as a defect in its customary sense, it is subject to the ruling of the law.
Private Law
niloofr Mirshekari; Shobeir Azadbakht; niloofr Bahramy
Abstract
Making a will by the testator and accepting or disclaiming it by the donee and executor requires the intention. As a rule, the main element of any juridical act (whether a contract or a unilateral juridical act) is the intention. As one of the types of juridical acts, the testamentary (will) is not exempted ...
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Making a will by the testator and accepting or disclaiming it by the donee and executor requires the intention. As a rule, the main element of any juridical act (whether a contract or a unilateral juridical act) is the intention. As one of the types of juridical acts, the testamentary (will) is not exempted from this rule. Indeed, as one of the judges of the Supreme Court of Virginia stated: “Intention being the life and soul of a will, it can hardly be imagined, I presume, that a man can make a will without intending to do so, or give by it more than he means to give".
In Iranian law, when discussing the intention of individuals in a testamentary (will), it is important to take care of the intention of the testator, donee, and executor. Thus, in the will, on the one hand, the testator wants to bring his wish to the fore to manage the affairs and property after death. On the other hand, the donee or executor (of course with exceptions) can disclaim the will for various reasons. Therefore, the principle of sovereignty of the intention in the will can be examined from the angles above.
American law is almost similar to Iranian law. In this legal system, when the principle of sovereignty of intention is considered from the perspective of the testator, the term "Freedom of Disposition" is used. On the contrary, when the topic under discussion is related to accepting or disclaiming the will by the donee, the term "Freedom of Inheritance" is used. Based on this, the principle of sovereignty of the testator's intention means the testator is a person who decides which property to transfer to whom and to what extent. The principle of sovereignty of the donee's intention also means the testator's authority to accept or at least disclaim the will. In this legal system, the "Testamentary Trust" is also used to fulfill the testamentary. In the testamentary trust, the testator accommodates the desired property to a person named "Trustee" so that he can manage the said property as a "Fiduciary" in favor of the "Beneficiary".
"Principle of Sovereignty of the Intention" has now created these questions in the authors' minds: First, what is the basis of the principle of the sovereignty of the intention of the testator, the donee, and the executor? Second, can we imagine limitations for the intention of the testator, donee, and executor? If the answer is “Yes”, what are the examples of these limitations?
In this article, by a comparative study of Imamia Jurisprudence, Iranian and American Law, an attempt is made to answer the above questions with a descriptive-analytical method and by referring to library sources. The reason for adapting this issue to American law can be summed up in two ways: First, in the legal system of this country, issues related to wills (especially the sovereignty of the will) are very important and have been examined in detail by scholars in the field of inheritance and wills. Second, Iranian jurists consider Imamia Jurisprudence when examining the challenges raised in the realm of wills, contrary to the approach that exists in the law of contracts and civil liability. Although this approach seems to be acceptable and good considering the Iranian civil law based on Islamic jurisprudence, but it cannot stop the curious mind from comparing the will rights with the western legal systems.
In the end, after studying the history of the mentioned principle, the following results are obtained: First, the testator's natural right, his motivation, securing the interests of the testator, setting the behavior of potential heirs, and duty to social cooperation are considered the basis of the testator's will. Also, preserving the independence of the donee and executor, the cooperation of the donee in managing the distribution of the estate, and ensuring the interests of the testator are the basis of the sovereignty of the testator's will. Second, while the formalities of making a will, the necessary heirs, the mandatory rules, and religion are the limitations of the sovereignty of the intention of the testator, the formalities of accepting or disclaiming the will and killing the testator by the donee are the limitations of the sovereignty of the intention of the donee and executor.
