Private Law Research

Abstract The debate as to whether it is necessary to have the gardener’s permission for a
virgin girl marriage has been a controversial subject for many years. This issue
has led the legislator to establish three aspects considered by Article 1043 of the
Iranian Civil Code. The differences relating to these three aspects raise this
question: Is it principally necessary to have permission of the girl's gardener,
before or after the marriage, in order for formal marriage to be treated as true
or false? If the answer is negative, what is the meaning of the first part of this
Article adopted in 1991? Does the marriage of virgin girl that reached the
puberty age require her gardener or her father grandfather’s permission? To
this end, the necessity of not having the virgin girl’s gardener permission, no
matter before or after marriage, existed in the nature of marriage. The virgin
girl gardener’s permission is legally for registering the marriage. The
gardener’s right to end her daughter’s marriage by terminating the marriage or
divorce through her daughter’s request is an approach which is to be
considered in this article by analysing it as the legislator's view.

Abstract Rescue and salvage operations take place in many sea voyages. Numerous
technical and legal problems may arise in these operations. The vessel which
proceeds to do this operation normally performs another job. By this operation,
the vessel breaches her job contract. The rescue ships usually incur a lot of costs
and damages in order to perform rescue operation. There are always many
challenges regarding costs and damages of rescuer in addition to the damages
which the vessel may cause to the rescued ship. The rescue operation is a legal
duty of ship masters; however, there should be a logic and legal method for
compensating the damages. This job is carried out either for the purpose of an
economic interest or it is done morally on the basis of beneficence. This article,
first, deals with legal aspects of the rescue and salvage operations on basis of
international conventions, common law, civil law and Iranian law. It then
examines different methods for compensation

Abstract In dealing with the bankruptcy regime, the legislator requires legal entities to
manage this regime for specific purposes. One of these legal entities that plays a
significant role is “automatic stay”. This legal entity is designed to prevent
individual action of creditors. Different factors play a role in the efficiency and
inefficiency of the automatic stay. The main reasons for efficiency are increasing
the value of property of the bankrupt and reducing costs. The main cause of
inefficiency is the redistribution of wealth. In Iranian law, a limited scope and
the lack of enforcement of the automatic stay are regarded as main reasons for
inefficiency of this legal entity. In the United States, the scope of automatic stay
is wider than Iranian law, and this legal entity can be enforced in the former.The
automatic stay is unavoidable in Iranian law, whereas there are different views
in U.S. law in this regard.

Abstract The general rule of abuse of right has been used in many legal contexts,
including contract law and family law. Rules and norms on private international
law have been affected by this general rule. Forum shopping in conflict of
forums and evasion in conflict of laws are the current issues which confront with
the abuse of right. Different legal systems have, however, adopted different
approaches by considering historical origins and social structures. In common
law tradition, forum shopping rule has been used for declining jurisdiction,
whereas civil law system is unfamiliar with this concept. On the other hand,
while evasion is, historically, regarded as one of the obstacles to the
enforcement of foreign law in civil law regime, public policy and mandatory
rules are the only barriers in the enforcement of foreign law in common law. In
Iranian law, none of these rules have been formulated and as a result, the
adaptation of these concepts with general principle is difficult.

Abstract To understand the principle of freedom of contract and its moral basis as well as
its source in our jurisprudence and law, we must not seek this principle in
jurisprudential texts. The examination of moral principle shows that the
principle is embedded in its concept. These rules are freedom of contract
formation and freedom of forms. This paper just argues that the most important
rule set forth in the principle of freedom of contract means freedom of forms
because of the extension of subject. By exploring verses, reports, Jurisprudential
and legal sources, it can be stated that the rule of freedom of forms embedded in
the principle of freedom of contract is rooted in moral principles, such as
general principle of loyalty to the covenant and compliance of action with intent
that entered into legal system in the form of freedom of contract principle after
being adjusted and reformed.

Abstract Compensation for damages arising from a breach of contractual obligations
should place the injured party in the position he would have been in had the
contract not been breached. By accepting the idea of full compensation, the
UNIDROIT Principles of International Commercial Contracts as well as the
Convention on Contracts for the International Sale of Goods (1980), judicial
precedents, and international arbitration awards have recognised this approach.
Despite the recognition of the principle of compensation, this theory is subject to
controversy in Iranian law, particularly in the event of damages caused by the
loss of anticipatory benefits. From justice and economic efficiency perspectives
and for the sake of adapting Iranian commercial rules with ones reflected in
international trade instruments, and for considering the affirmative religious
jurisprudential principles, it is recommended that effective steps should be taken
towards the removal of all existing legal barriers in Iranian law.