Private and Islamic Law
Mahmoud Kazemi
Abstract
With the permission of the principal, the agent can delegate the execution of the matter of agency to another (subagent), which is named “delegation” (Tawkeel). “Delegation” can happen in two ways; either the agent employs a subagent for himself, or for the principal; but in both ...
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With the permission of the principal, the agent can delegate the execution of the matter of agency to another (subagent), which is named “delegation” (Tawkeel). “Delegation” can happen in two ways; either the agent employs a subagent for himself, or for the principal; but in both assumptions, despite the selection of the subagent, the agent maintains his contractual position and is still committed to the principal to perform the contractual obligations. However, it is possible for the agent to transfer the agency contract to another person with the permission of the principal. Transfer of the Contract is generally one of the issues of modern contract law, and there is no provision in this regard in Iran's Civil Code, except for limited references to some contracts.
The concept of transfer of agency contract is not different from the transfer of contract in the general sense. The transfer of the agency contract means the transfer of the contractual position by the agent or the principal; this means that the third party becomes the substitute of the agent or the principal in the agency contract. Usually, the transfer of agency is proposed by the agent. With the transfer of the agency contract, the agent is to be substituted by the subagent and his contractual position against the principal becomes dependent on him, and the agent loses his contractual position. Although the transfer of the agency contract and delegation are similar in a certain sense, they are different in certain conditions and have diverse rulings and effects. In the assumption that the agent is authorized to, he can transfer the agency contract to another person in order to execute the delegation of agency; therefore, every transfer of agency contract requires a delegation, but every delegation does not necessarily mean the transfer of agency contract.
The transfer of the agency contract by the principal is not conceivable, because due to the fact that the guardianship is subject to ownership, someone can give agency to another regarding the property or is authorized by the owner. Due to the nature of the agency contract, the transfer of it may be doubted. But in order to prove its possibility, it should be said that regardless of the legal nature and effects of the agency contract which indirectly creates obligations for the parties, the "contractual position of an agent" as a privilege can be transferred to others; it can be the subject of transaction and contract, unless there is an obstacle. The transfer of an agency contract is a contract concluded between an agent and a third party (= transferee), but the consent of the principal (= the party to the agency contract) is a condition for its validity and influence. According to the principle of consensually of contracts in Iranian law, it should be believed that the contract of transfer of agency contract is concluded by consent of contractants, and no special formalities are required for its conclusion, just as there is no need for special formalities to conclude an agency contract. Of course, it seems that in the assumption that the agency contract is officially concluded with the preparation of an official document, the transfer of the agency contract must also be done with an official document.
There is no text regarding the effects of the transfer of agency contracts in Iranian law. It seems that with the transfer of the contract, all the contractual rights created from the agency contract are transferred to the transferee. Based on this, the guardianship and authority created for the agent is transferred to the transferee with all its accessories. On the other hand, he is responsible to the principal for all the obligations that the agent had to him. However, the main question here is whether by transferring the contract and transferring the rights and obligations to the transferee, the transferor (Agent) is released from the contractual obligations in front of the contract party (Principal), or is he still committed to the performance of the contractual obligations alongside the transferee. With the lack of provision, the solution of French law can not be accepted in Iranian law; so we should believe that by transferring the agency contract, the transferor (agent) is released for the contractual obligations, unless he expressly remains committed to the performance of the obligations. In French law, the survival of the obligation of the transferor of the contract in Article 1216-1 of the Civil Code has been accepted and since the transfer of the contract requires the transfer of debt, the judgment of transfer of debt has been established regarding the transfer of the contract.
Considering the silence of the Civil Code and the lack of legal literature on the subject, in this article based on legal principles and comparative study in other legal systems, especially France, we try to prove the possibility of transferring an agency contract, state its conditions and explain its rules and effects.
Private Law
kheyrollah hormozi
Abstract
Articles 18, 142, and 275 of the Civil Procedure Law are composed in such a way that the lawsuit and the defense are separated. For this reason, the question is raised whether lawsuit and defense are two separate concepts or whether similar concepts are called lawsuit or defense depending on which side ...
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Articles 18, 142, and 275 of the Civil Procedure Law are composed in such a way that the lawsuit and the defense are separated. For this reason, the question is raised whether lawsuit and defense are two separate concepts or whether similar concepts are called lawsuit or defense depending on which side of the lawsuit (petitioner or defendant) is raised. This question has occupied the minds of lawyers and judges and it has been discussed in the opinions of the courts and the judicial meetings of the justice judges. Distinguishing the defense of a lawsuit has been and still is one of the concerns of civil procedure authors. In this article, the two concepts of defense and lawsuit are studied according to the illustrative cases mentioned in Article 18 and 142 of the Civil Procedure Law and an attempt is made to explain these two concepts. In this regard and considering that these two concepts are better discussed in jurisprudence books, first these concepts have been studied in jurisprudence and then in French law, and finally, according to the judicial procedure, the criteria of recognition and distinction have been tried. The claim must be determined from the defense.
Private Law
Mohammad Hadi Javaherkalam
Abstract
Critical and analytical view of the procedural unity verdict no. 805, dated 1403/02/25 by Iran’s supreme court general assembly, focusing on legal doctrine, jurisprudential teachings, and judicial precedent, reveals the following conclusions:
One of the fundamental disagreements in the jurisprudence ...
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Critical and analytical view of the procedural unity verdict no. 805, dated 1403/02/25 by Iran’s supreme court general assembly, focusing on legal doctrine, jurisprudential teachings, and judicial precedent, reveals the following conclusions:
One of the fundamental disagreements in the jurisprudence in recent years was to answer the question of whether in general representation, based on which the “representative has the authority to transfer the subject of the contract to anyone, even the representative himself at any price and under any condition he deems fit” the representative is obligated to consider the principal's best interest, or if representative, given the broad powers granted, has no duty to consider the principal's benefit. Supreme Court General Assembly by unity verdict no. 805, dated 1403/02/25 did not accept the opinion of the majority of judges in this regard, emphasized and expressed the need to respect the interests of the principal. In these terms: According to Article 307 of the Civil Law approved in 1307, it is prescribed to conduct a transaction in relation to another's property by the representative, on the other hand, according to Article 667 of the same code, the representative must respect the interest of the principal in his actions. Therefore, when a person represents another person to sell his property to any person, even the representative himself, it is assumed that the representative is acting in the best interest, and if the representative sells the original property at a low price, with reference to Article 1073 of civil code the transaction is invalid and the original can reject and void it. It is obvious that the issue of the verdict does not include the letters of representation before issuing the verdict. This opinion is acceptable because, in addition to the jurists of the Imami who have made the validity of the representation subject to the observance of the principal’s expediency, the implicit will of the parties and the principle of non-delegation and non-representation also confirm it.2. The criterion of non-observance of the principal's interest and the criterion of concluding a contract against his interest and the status of this transaction is one of the differences of opinion between legal doctrines and judicial practices. In this way, some judges and professors of civil rights considered only intentional rendering the transaction ineffective. But the verdict in question, following the opinion of the majority of Imami jurists and legal doctrine, without making a distinction between intentional or unintentional, granted the principal the right to request the court to declare the transaction void null and void. Therefore, what is important and the criterion is the non-observance of the principal's interest, not the representative's bad faith 3. Another challenge of the judicial procedure is whether it is possible to demand damages from the representative and if the answer is positive, how much it is. In this regard, some courts used the price stated in the document as a criterion, and others used the actual price of the subject matter of representation at the time of concluding the contract. Although the verdict has not been determined in this decision, without a doubt, the principal can claim damages, including the actual price, by referring to the note of Article 19 of the Criminal Procedure Law.4. Although apparently, the verdict violates the rights of third parties in good faith, the analysis of this verdict should be done in such a way that the rights of these people are not violated. One of the ways to respect the rights of third parties in good faith is to consider the official transfer of property to them as lost in law. The claim of the representative regarding the return of the property against third parties in good faith should not be accepted. Instead, the principal should be able to claim its equivalent from the representative or the third party with malintent especially when the property has changed significantly, considering that the law of Mandatory Registration of Real Property Transactions 1403 enacted by the Expediency Discernment Council has prescribed the loss in law (constructive loss) in several articles.
Private Law
Badie Fathi
Abstract
Peace Court was added to Iran's judicial system as a court with relative jurisdiction (jurisdictional amount) according to the Dispute Resolution Council Law of 1402. This court did not exist in the bill proposed by the judiciary. Following the opposition of the Constitutional Council by giving jurisdiction ...
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Peace Court was added to Iran's judicial system as a court with relative jurisdiction (jurisdictional amount) according to the Dispute Resolution Council Law of 1402. This court did not exist in the bill proposed by the judiciary. Following the opposition of the Constitutional Council by giving jurisdiction to the Dispute Resolution Council and as a result of the subsequent cooperation between the Constitutional Council, the Parliament, and the Judiciary, it was established. The absence of understanding of the goals, principles, and rules governing the establishment of a court with relative jurisdiction, has caused defects in the jurisdiction of the peace court. Therefore, it is necessary to analyze the current situation and with a historical look at courts with relative jurisdiction to look for what are the rules governing the jurisdiction of courts with relative jurisdiction. And what problems are there in the jurisdiction of the peace court? And how can these defects be eliminated or at least reduced? In the matter of the jurisdiction of the peace court, not specifying whether the jurisdiction in paragraph one of Article 12 of the Dispute Resolution Council Law of 2023 is based on the actual amount of the property or whether the plaintiff has the authority to determine the price of the property is one of the flaws of this law, but it seems that with the help of studying the history of Iranian proceedings, this rule can be Obtained: Whenever an authority with relative jurisdiction has been formed, the criterion of jurisdiction has been the actual amount of the property. In addition, in Article 61 of the Civil Procedure Law of 2000, the determination of the price of property by the plaintiff is effective in the appeal and the cost of the proceedings, and it can be inferred from this article that the determination of the price by the plaintiff has no effect on the jurisdiction.
Regarding the lawsuits related to the Industrial Property Law 2024, even if the value is less than one billion Rials, according to the spirit of Article 143 of the Industrial Property Law and also the expediency of not dividing the courts dealing with these lawsuits, if these lawsuits are considered in the civil court, it is more reasonable.
On the other hand, alimony, dowry, and trousseau claims have been placed under the jurisdiction of the peace court, which is not compatible with the interests of the family, and it would be better if these disputes were not removed from the jurisdiction of the family court. The fair equivalent remuneration of the wife is not mentioned in Article 12(3). However, the claim of the equivalent remuneration of the wife, even if it is less than 1 billion rials, is under the jurisdiction of the family court due to the exclusive jurisdiction of the family court and the existence of subject matter jurisdiction between the peace court and the family court.
In addition, giving criminal jurisdiction to the peace court can bring the failed experience of the General Courts Law of 1994. Also, the lack of consistency in the defined criminal jurisdictions of the Peace Court is one of the disadvantages of this court's jurisdiction. For example, while "intentional" crimes of the seventh and eighth degrees are under the jurisdiction of the peace court, there is no mention of "unintentional" crimes of the seventh and eighth degrees, and also regarding the private aspect of crimes related to driving and labor law, regardless of the amount, even if it is billions Rial, is also within the jurisdiction of the peace court, but there is no text regarding the jurisdiction of the peace court in dealing with the "private aspect" of seventh and eighth-degree crimes.
Private Law
ahmad usefzadeh
Abstract
Undoubtedly, the emergence and development of blockchain technology in 2009 has been one of the most significant transformations in various economic and social fields over the past two decades. Blockchain, literally meaning "chain of blocks," is an innovative system for recording data, in which information ...
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Undoubtedly, the emergence and development of blockchain technology in 2009 has been one of the most significant transformations in various economic and social fields over the past two decades. Blockchain, literally meaning "chain of blocks," is an innovative system for recording data, in which information is stored on blocks with limited capacity. Once each block is filled, data is then recorded on the subsequent block, thereby creating a chain of blocks, which is referred to as the blockchain network. What makes the process of recording information on the blockchain unique is that it can operate in a decentralized manner, without the involvement of a central authority. The verification of data entries or changes is carried out by network users, which leads to the creation of a secure and cost-efficient network that can be used for a wide variety of applications, with the creation of cryptocurrencies and non-fungible tokens (NFTs) being only a small fraction of its potential uses.
The NFT market, which can be traced back to 2014, experienced remarkable growth between 2020 and 2021. The trade volume of NFTs surged to over $17 billion in 2021, representing a 21,000% increase compared to the total of $82 million in 2020. During this time, NFTs were increasingly utilized as speculative investments, drawing significant criticism due to the energy consumption required for their production and the carbon footprint associated with validating blockchain transactions. Additionally, NFTs have been repeatedly used in art fraud, prompting various legal analyses concerning the applicable legal regime for these tokens and the establishment of regulations for their creation and transfer.
Despite NFT proponents claiming that these tokens provide a clear certificate of ownership, the legal rights transferred through an NFT remain ambiguous in many cases. This ambiguity arises from several factors. For example, the transfer of an NFT does not necessarily imply the transfer of intellectual property or other legal rights to the buyer. Moreover, in many cases, an examination of the parties’ contract reveals that the intention was to grant a license to use the token, rather than to sell it. Conversely, even when the contract is labeled as a license agreement, the substance of the transaction may indicate the parties' intention to transfer ownership of the NFT. This issue becomes even more complex when considering that an NFT does not restrict the sharing or copying of the associated digital file, nor does it prevent the creation of other NFTs that reference the same file.
Hypothesis
The initial hypothesis of this article is based on the notion that non-fungible tokens (NFTs) fall under the category of digital goods. However, applying the legal frameworks governing intellectual property contracts to NFTs is not suitable, as it leaves many issues unresolved, including the formation, execution, and the legal rights transferred. This problem stems from the confusion between the NFT itself and the associated artwork. While NFTs can be examined as intangible assets, under Iranian law, the precise nature of an NFT must be analyzed independently of the artwork upon which it is based. Additionally, the legal transaction occurring during the transfer of the NFT must be clearly defined to establish an appropriate legal framework. It appears that the transfer of NFTs can be considered under the framework of a sales contract within Iranian law.
Methodology
The research method used in this study is the description and examination of the prevalent theories with an analytical approach along with the critique of these theories. Considering all the basic and effective elements in the nature of bargaining power and confronting abusive bargaining power, through a logical standpoint to the status of common law countries and the method of applying it in Iranian law.
Conclusion
The analysis revealed that NFTs have various forms and applications. The nature of NFTs is that of personal digital assets, which also possess characteristics of ownership under Islamic jurisprudence and Iranian law. Using the framework of a licensing agreement for the transfer of NFTs does not align with the rights and obligations of the parties involved in the customary practice of NFT transactions. A license cannot be considered a necessary element in the transfer of NFTs. In some cases, such a license may be issued, while in others, the transfer occurs without granting a license. Furthermore, in certain instances, the license pertains to the NFT itself, whereas in others, it relates to the sales platform.
The study demonstrated that, in Iranian law and jurisprudence, the term "property" in the definition of a sales contract is intended to exclude the sale of services from the scope of the contract. Given that the legislator has accepted the sale of intangible property in various contexts, there is no objection to considering the transfer of NFT ownership as a sale. Intangible property refers to assets that do not have a physical existence but are recognized by society and law. Legal scholars have expanded the scope of intangible property to include any type of financial right. Thus, all proprietary rights (excluding ownership, which is commonly associated with its physical subject matter), such as the right of usufruct, easements, debts, business goodwill, and intellectual property rights (including literary, artistic, and industrial property), as well as NFTs, are considered intangible property. In cases where the parties' intention is to sell the NFT, the principles of a sales contract can be applied to the transfer of NFTs in Iranian law, similar to the approach observed in U.S. law. By doing so, not only can the rights and obligations of the parties be clearly defined, but also various protective rules applicable to the sale of goods and services can be extended to these contracts. This approach is more consistent with the recognition of NFTs as personal digital assets.
Private Law
Morteza Vesali Naseh; shahram Rahmani
Abstract
A major part of people's lives is going on in cyberspace and social networks, which is not possible without having various user accounts in different fields. Continuity and continuation of the user's relationship with the user account creates a kind of right for him. Determining the type and nature of ...
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A major part of people's lives is going on in cyberspace and social networks, which is not possible without having various user accounts in different fields. Continuity and continuation of the user's relationship with the user account creates a kind of right for him. Determining the type and nature of this right has caused a difference of opinion among jurists. Some describe the right to user account as a Right in Personam and the other as a right in rem. The acceptance of each of these opinions will have different legal effects, especially after the death of the user. Basically, from the point of view of law, the relationship between persons and objects is described in the form of rights (either ownership, usufruct, or easement). In the current research, the relationship between individuals and user accounts has been described in the form of a kind of right and has been examined under the title of "right to the user account". Analyzing the legal dimensions of the user account and its effects and results requires the identification of this right or, in better words, the explanation of the legal nature of the relationship between individuals and the user account. Analyzing the legal nature of a person's relationship with a user account can have different legal effects. Based on the determination of the nature of the right on the user account, the legal dimensions of the user account can be studied and the questions raised in this regard can be answered. Questions such as what rights do the account holders have? Can the user be considered the owner of the user account and be given ownership rights or do users only have the right to use and the user account is not considered as a property? Does the user account have a proprietary value? Is the user account considered part of the estate after the death, and what rights do the heirs of the user account have in relation to the user account?
The analysis of user accounts and related rights is based on the separation of the mere user account from the content of it (content). On this basis, the user account itself is the subject of contract law and the user's relationship with it is subject to the terms of service agreement. However, the content created in the user account, which has added value to the user account by spending time and searching, belongs to the user. Based on this separation, what is the right to the user account in terms of the user's relationship with the user account, it is a kind of religious right for them only the right to use, but in terms of the user's relationship with the account's content, the right to the user account is a type of objective right that the user has the right to use, which will create property rights.
In Iranian law, no laws or regulations regarding user accounts and in general regarding virtual property and assets of people in cyberspace and social networks have been approved. It is obvious that the increasing use of cyberspace and social networks will make it inevitable for Iranian legislators to enact special laws. The current research considers the design of the "legal system governing virtual platforms" in which the rights and duties of the users and owners of the platforms are well explained as necessary and inevitable. It seems that the first legislative action can be the legal identification of "property and virtual assets" and determine the assignment of these assets after the death of the user.
Public and International Law
Ahmad Reza Tohidi; Mohammad Ali Sharifi Kia
Abstract
The right to be forgotten, which is the ability of the data subject to request the deletion of personal data related to him/her from the servers of cyberspace processors, has been respected as one of the most fundamental rights of cyberspace users in the European legal system. However, there are differences ...
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The right to be forgotten, which is the ability of the data subject to request the deletion of personal data related to him/her from the servers of cyberspace processors, has been respected as one of the most fundamental rights of cyberspace users in the European legal system. However, there are differences in legal documents and judicial procedures regarding the manner and scope of application of this right by this system. Therefore, after examining the European General Data Protection Regulation document, the judicial procedure of the European Court of Justice in two of the most important cases related to the scope of application of this right, the following results are obtained:
- The right to be forgotten applies only to personal data and processors are not required to delete other data that do not have this feature.
- If personal data have been anonymized using technical methods and means, in such a way that the identity of the data subject can no longer be established using common and conventional methods and means, the right to be forgotten will not be possible.
- Despite the apparent similarity in the processing operations, the right to be forgotten should not be confused with the right to restrict access and processing, because the result of the first right is the complete deletion of the user's personal data from the processor's servers and all related third-party contractors and service providers, while the result of the second right is only the imposition of restrictions on the transfer and disclosure of personal data to processors and third-party contractors, and in this case, the personal data of individuals will still be in the possession of the primary processor.
- The case law of the European Court of Justice indicates that, despite the supremacy of European law over the national laws of the member states and the elimination of economic borders in this Union, the application of the General Data Protection Regulation in two important cases related to Google concerns the exercise of this right only in the cyberspace of the applicant's country of residence. In other words, despite the possibility of exercising cross-border jurisdiction by the European Court of Justice, which was previously mentioned, according to this judicial institution, it is possible for European users to enjoy this right only within the territory of their country of residence, and the Court has not extended the removal of links related to the data subjects to the entire geographical area of Europe or to the entire cyberspace of the world.
- It should be noted that while the Court in the two judgments of Gonzalez and the French Observer defines the geographical scope of the right to be forgotten as the territory of the Member State of the Union, as was pointed out in the Pizczek case, it does not bind the Member States to issue a non-referral order on a global scale and, if the Member State observes the relevant considerations in order to protect the fundamental rights of the data subject, it has the right to take a decision on such a scale.
- From the Court's perspective, criteria such as the role of the data subject in social life, the nature of the data in question, and the balance of the data subject's fundamental rights to private life and the public right to access information should be taken into account when authorizing the issuance of a non-referral order, and these criteria also have a direct impact on the determination of the scope of the right to be forgotten by the courts of the Member States and the Union.
Finally, it seems that the European Court of Justice, regarding the scope of application of this right, first examines the mentioned criteria by considering the unique circumstances of each case and finally balances the individual's right to data protection and privacy against the public's right to freedom of access to information; then, if the fundamental right of the data subject to have a private life takes precedence over the public right to freedom of information and expression, it orders their deletion on various scales, whether regional or global, depending on the individual's social personality and the nature of the data. However, if all the conditions for deleting links related to the individual are not met, a non-referral order may not even be issued. Finally, given the importance of the General Regulation document in today's cyberspace, as well as the practice of the Union's supervisory institutions, including national supervisors, the European Data Protection Board, and the courts of the member states and the Union, in preventing access to user data and communication with official Union platforms, in addition to imposing heavy financial fines, as a result of non-compliance with the provisions of the said document and lack of coordination with Union laws, and also considering the cross-border applicability of the provisions of the said document and the procedure that the Union has taken to maximally support this unique feature, it seems that all non-member countries (such as Iran) that intend to exchange information with Union member states, access the data of European citizens, or provide services within the Union should take the necessary measures to synchronize themselves with Union regulations and update their national data protection organizations and laws in this regard, so as to both benefit from the benefits of cooperation with global platforms and limit the application of foreign Union laws in their territory by formulating national laws
Private Law
mina bolurifar; Bizhan Haji Azizi
Abstract
The complexity of social relations has increased the examples of tort law and made this area of law more important. In addition, it has been concluded in legal systems that creating a society free from hypothetical losses is ideal and unrealizable. Therefore, legislators use tort law as a tool to create ...
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The complexity of social relations has increased the examples of tort law and made this area of law more important. In addition, it has been concluded in legal systems that creating a society free from hypothetical losses is ideal and unrealizable. Therefore, legislators use tort law as a tool to create balance in society and establish justice. The concept of justice can be very diverse. From the point of view of the economic analysis of law, it is considered an efficient situation where both the activity of people is at the highest level of profitability and the occurrence of losses is prevented as much as possible. In fact, economically efficient situation is a situation where a reasonable and cost-effective balance is established between activity and prevention. Several solutions have been proposed in the economics to establish such a balance, and in this research, after introducing each theory, the state of Iran's tort law system is examined. The result of this research, which is using analytical-descriptive method, shows that Iran's tort law system relies on prevention more than encouraging people to act, and the theories of risk and fault are not always used in their correct place.
