Private Law
Ehsan Bahramy; Mostafa Elsan
Abstract
In order to defend a frivolous claim, the defendant may suffer from numerous fees such as litigation and expertise costs, attorney's fees, etc. One of the important questions is whether the demand for such fees caused by a frivolous claim is subject to proving the plaintiff's negligence or bad faith. ...
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In order to defend a frivolous claim, the defendant may suffer from numerous fees such as litigation and expertise costs, attorney's fees, etc. One of the important questions is whether the demand for such fees caused by a frivolous claim is subject to proving the plaintiff's negligence or bad faith. In response, the Iranian Law situation is not very clear; Because according to Article 109 of the Civil Procedure Code, the security for costs order for frivolous claims, which is considered one of the ways to fee-shifting, is not subject to proving the plaintiff's negligence or bad faith. On the other hand, according to Article 515 of this Code, demanding fees from the plaintiff is generally subject to proving his bad faith. Along with the study of American Federal Law, resolving this ambiguity and conflict is the subject of this article. In this article, after explaining the concept of a frivolous claim, it is concluded that identifying the plaintiff's negligence (not his bad faith) is necessary for demanding fees caused by frivolous claims. In order to identify the plaintiff's negligence, some points must be considered: firstly, the negligence is identified according to the circumstances of the lawsuit. Secondly, the negligence of the pro se litigant or unrepresented party is measured by comparing him with the reasonable one and the negligence of the lawyer is measured by comparing him with the reasonable lawyer. Thirdly, as a rule, the pro se litigant or unrepresented party may not be considered negligent for filing a claim without a legal basis.
Ali Tahmasbi; Kourosh Alipour
Abstract
In legal systems, regarding the expected objectives, the various factors have been taken into account in determination of basis of civil liability in order to select a more appropriate rule. The liability may depend upon the commitment of negligence by tortfeasor or only the existence of the causation ...
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In legal systems, regarding the expected objectives, the various factors have been taken into account in determination of basis of civil liability in order to select a more appropriate rule. The liability may depend upon the commitment of negligence by tortfeasor or only the existence of the causation between the detrimental act and loss shall be enough for achievement of the liability. The present article, irrespective of basis accepted in legal systems, intends to study the effect of these rules on behavior of people and their encouragement in observing the precaution. In cases where the tortfeasor can hinder to occur the loss, the rule of strict liability may have the appropriate effect and encourage him in observing the precaution. But, if the precaution of tortfeasor and victim is necessary for prevention of occurring loss, the more appropriate effects shall be followed through applying the negligence or competitive strict liability. Such analysis makes it possible to consider the probable effects of rule on the behavior of the people and to be more appropriate or inappropriate, before constituting the rule and while taking into account the various aspects, and to take the proper actions for removal of its effects.
