Private Law
mohammad mojtaba rodijani; Hekmatullah Askari; Behnam Ensafi Azar
Abstract
The right of lien in Iranian law has been explained by jurists, considering Article 377 of the Civil Code. This article is included in the submission of the contract of sale and the jurists mainly deal with this article only in the topic of the right of lien. However, attention to other regulations, ...
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The right of lien in Iranian law has been explained by jurists, considering Article 377 of the Civil Code. This article is included in the submission of the contract of sale and the jurists mainly deal with this article only in the topic of the right of lien. However, attention to other regulations, jurisprudential analysis, and comparison with foreign laws demonstrate two types of liens can be identified in Iranian law: 1) equitable lien (in cases where there is a balance between the parties), 2) possessory lien (the legal right for a creditor to preserve the property of the debtor). This is while the review of the equitable lien in the works of legal writers did not leave room for an independent review of the lien of possession, even though this type of right of lien has been present in Iranian law since 1/6/1312 (1933) with the approval of the law on the debt of immigrants to guest houses and boarding houses. This article, through the descriptive-analytical method (library study), seeks to identify possessory lien as an independent institution in Iranian law with a comparative study.For this purpose, a comprehensive definition of the right of lien is provided in the present research: "The right of Lien is the legal right for a person that is settled in the property of others until the fulfillment of their debt and obligation." This definition, in addition to including various types of the right of lien by passing the traditional point of view, also opens the way for the use of other types of right of lien, including maritime lien, which is itself one of the type of the right of lien in possession, in Iranian law.
Private Law
Seyyed Abbas Moosavi; akbar osanlou
Abstract
The purpose of the parties to a contract is the emergence of its results and effects and legal principles guarantee the stability, validity and reliability of contracts. However, the nature of the object of the contract and various events beyond the parties` control may lead to the impossibility of the ...
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The purpose of the parties to a contract is the emergence of its results and effects and legal principles guarantee the stability, validity and reliability of contracts. However, the nature of the object of the contract and various events beyond the parties` control may lead to the impossibility of the execution of the contract. Different situations can lead to the lapse of contract; for example, physical destruction, and the loss of a future object or illegality. The Iranian and French laws do not expressly declare the legal status of the legal relationship in various cases of lapse of contract. Dissolution, lapse, nullity, retroactive and judicial termination are among the descriptions mentioned in this regard. This inconsistency is seen both in case law and doctrinal theories. But in 2016 revision of the French contract law, through study of the case law and doctrine in a descriptive and analytical method, caducite was introduced, which could resolve the mess; It is the sanction for a contract validly concluded, but lacking an essential element following a subsequent event. One of the essential elements in a contract is the object, the loss of which leads to the automatic and non-retroactive lapse. This experience can inspire Iranian lawmakers to better lead the case law on the loss of the object of contracts, by categorizing the causes of the impossibility of the execution of contract due to the loss of its object.
Private Law
kadijeh mozafari; Alireza Izadi fard
Abstract
The assignment of national lands is provided in Iranian law in two definitive and temporary forms. The land is temporarily assigned in the form of a contract between the Ministry of Agriculture and eligible applicants. The contract has a definite form approved by the Cabinet of Ministers. Contracts are ...
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The assignment of national lands is provided in Iranian law in two definitive and temporary forms. The land is temporarily assigned in the form of a contract between the Ministry of Agriculture and eligible applicants. The contract has a definite form approved by the Cabinet of Ministers. Contracts are made in the form of a lease contract and in accordance with specific procedures such as formality and compliance with a specific form. The parties to the contract are the agricultural director of the province as a representative of the Ministry of Agriculture and, on the other hand, applicants with special general conditions and legal priorities. In addition to paying a fare, the tenant must execute a draft plan on rental land. In addition to land delivery, the landlord should provide the tenant with the conditions for issuing the document. Violation of the tenant will be result in the termination of the rental agreement. In the event of a landlord's violation, the tenant will first demand the coercive and terminate the contract in case of compulsory issuance. Objections to decides of the supervisory board and third party claims of land assigned are the most significant disputes arising from the implementation of the contracts.
Private Law
Abolfazl Aghakhani
Abstract
AbstractEach party to the contract expects that in the event of termination, automatic cancellation or cancellation of the contract, the same exchange or compensation that it has transferred to the other party in the contract, to achieve the purpose of terminating the contract. But in many cases it happens ...
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AbstractEach party to the contract expects that in the event of termination, automatic cancellation or cancellation of the contract, the same exchange or compensation that it has transferred to the other party in the contract, to achieve the purpose of terminating the contract. But in many cases it happens that despite the existence and survival of the original property, it will not be possible to return it. In the event of automatic cancellation or cancellation of the contract before the property subject to the contract is transferred to the third party by the buyer (transferor), If there is a right of termination for the seller from the beginning of the contract and according to the contractual condition, the buyer does not have the right to transfer the property until the expiration of the seller's option. However, if the seller has a potential right of termination in the contract and the property is transferred to a third party before the right of termination is created, and also if the termination or termination of the contract occurs after the transfer of property to a third party, the same property is non-refundable. It is destructed in law. The fundamental question is to what extent the existence of a right of termination for the seller can limit the ownership of the buyer? if the property is transferred to a third party and the contract is terminated, the seller is considered a destructed, unless the condition is violated (explicit or implicit) and the buyer does not have the right to seize the option. However, in the case of a sale, the legislature presupposes that the right of termination contains the implicit obligation that the transaction must be ready to be returned to the original owner, and therefore prohibits seizure contrary to the option.
Private Law
Ghasem Mohammadi; Gholamali Seyfi; Mehdi Karimian ravandi
Abstract
In principle, the effectiveness of conciliation provisions depends on a set of factors other than the will of the parties, such as the will of the legislator and the role of the judge. According to Article 10 of the Civil Code, the parties have full freedom of agreement, but this freedom is not absolute, ...
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In principle, the effectiveness of conciliation provisions depends on a set of factors other than the will of the parties, such as the will of the legislator and the role of the judge. According to Article 10 of the Civil Code, the parties have full freedom of agreement, but this freedom is not absolute, and the supposed legal plans will change the structure of the contract.Now the question arises to what extent the legislator can play a role in the development and restriction of contractual freedom, given the economic, social, welfare and development needs by benefiting from special laws? And to what extent do law, custom and sharia prefer the public interest in preferring the necessities and pursuing public interests arising from the conflict of personal and public interest?To explain this important point in this article, coercion in the contracting board is divided into two types of elementary and structural coercion, and these results obtained by induction in the opinions of courts, scientific sources and judicial procedures indicate that: First, the courts force the parties to deviate from the conciliation results to a minimum or maximum, and the public interest is emphasized in the issuance of judgments as well as in judicial procedures. Secondly, the cases mentioned in the paragraphs of Article 190 of the Civil Code imply the obligation of elements to the extent that in the dominant aspect, in all agreements, they are present as a necessity in the composition and are irrevocable, but on the contrary, due to the structure of contracts. Certain special parties are required to comply with the rules arising from the requirements and restrictions that have arisen in the context of coercion arising from the elements and will require them to make the desired changes to elements of the contract.
Private Law
Iraj Babaei; Morteza Torabi
Abstract
Human rights are traditionally discussed in public law and in government-citizen relations, but this does not mean denying its impact on private law. In contract law, principles such as the rule of will or freedom of contract are themselves in line with human rights principles, but are not sufficient ...
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Human rights are traditionally discussed in public law and in government-citizen relations, but this does not mean denying its impact on private law. In contract law, principles such as the rule of will or freedom of contract are themselves in line with human rights principles, but are not sufficient to fully protect fundamental human rights. For this purpose, it is necessary that other principles can be introduced as principles in line with traditional principles in contract law. The most basic principle of human rights is the principle of human dignity. The question is, to what extent and in what way can this principle be applied in contract law? Can fundamental rights derived from this human rights principle be revoked by a contract? In this article, with emphasis on various cases in the jurisprudence of some countries and the European Court of Human Rights, we have come to the conclusion that The principle of freedom, which includes important rights such as human dignity, the right to respect for family life, and the principle of non-discrimination, which encompasses various aspects, sometimes as a limiting factor of the will to prevent the infringement of a condition or contract contrary to them and sometimes fundamental rights arising from these principles. As general civil rights, they are also partially irrevocable or revocable. The research method has been library and by studying the judicial practice of countries and Iran.
Private Law
Mansoor Amini; javad piri
Abstract
Legal systems and International documents to ensure the rights of persons in contractual relations have paid attention to various sanctions and have accepted the compensation method as one of the most important sanctions ; therefore, there is no doubt that damages in legal systems and international documents ...
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Legal systems and International documents to ensure the rights of persons in contractual relations have paid attention to various sanctions and have accepted the compensation method as one of the most important sanctions ; therefore, there is no doubt that damages in legal systems and international documents are compensable. However, when the damage is subject to the judgment, the criterion of Assessment of damages becomes important; because the lack of criteria for Assessment of damage leads to inefficiency of the sanction. Accordingly, in legal systems and particularly international documents, have been attempted to provide criteria for assessing damages. Regarding the weakness and ambiguity of the Iranian legal system on damages, the results of this study can be useful for lawyers and judges and on the other hand, it can be useful for the legislator to inspire the criteria provided in order Regulations.
Private Law
Eisa Rajabi; shahrzad ounegh
Abstract
The document of “General Conditions of Contract” is one of the provisions that govern the governmental contracting contracts and cannot be infringed. Among the issues to be considered in this document are the provisions of Article 53, with the title of "Dispute Resolution”. This article, ...
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The document of “General Conditions of Contract” is one of the provisions that govern the governmental contracting contracts and cannot be infringed. Among the issues to be considered in this document are the provisions of Article 53, with the title of "Dispute Resolution”. This article, because of the use of the words "he can" and "they can" in paragraphs (a) and (c), and with the prediction of quasi -arbitration and arbitration in the form of a contract term, and also as a consequence of the "Optional or compulsory will” of the parties to lawsuit to the non-judicial authorities, has led to various interpretations of the designation of the competent authority to deal with disputes arising out of this kind of contracts. The absence of a uniform judicial procedure in these cases has caused to wasting time and financial costs on litigants (employer and contractor) and the judiciary. Therefore, in the present article, we will try to rely on the method of reasoning and principles and legal rules governing the subject in one of the preliminary Court votes, while examining the structure and analysis of the scientific approach of the judge's thought, including the legal concept and nature of this kind of contracts and method of Non-Judicial Dispute Settlements, as well as the Status of Non-Judicial Dispute Resolution Authorities in the Contractual Condition, to determine the extent to which litigants have the possibility in choice of the jurisdictional or non-judicial proceeding, and as far as possible provide a functional and unified approach to deal with such disputes
Private Law
mohsen esmaeili
Abstract
One of the types of Ownerships’ Trusts is loan that is the result of a contract and agreement between the parties (owner and trustee). According to Iranian Civil Code Articles there are twelve examples of this type of Trusts in the form of nominated contracts that explicitly or implicitly have ...
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One of the types of Ownerships’ Trusts is loan that is the result of a contract and agreement between the parties (owner and trustee). According to Iranian Civil Code Articles there are twelve examples of this type of Trusts in the form of nominated contracts that explicitly or implicitly have been measured as trust contract. This article is intended to answer this critical question that: “Do these twelve examples have a Limitative aspect and as a result, It cannot be added to the number of Nameless Contracts or they are merely examples of Nominated Trust Contracts and don’t prevent the formation of Trust Contract based on article 10 of the Civil Code? This disagreement over the scope of transactions or the freedom of will in creating new form of transactions, is not a new discussion. But the origin of this question, is the different interpretation of Article 631 made by lawyers. Some of them support the theory of the limitative contract of trust and others disagree with it. The third theory, which is presented in this article, is “Implies non-limitative”, an idea stronger than “Not implying to limitative”. The practical result of this answer, is the validity of new types of Nameless Contracts Which have become so common nowadays and the parties wish to arrange the effects of the trust on them.
Private Law
azim kochaki pahne kolahi; seyed Hekmatallah Askari; Mohammad Hussein ansari haghighi
Abstract
Excessive legislative recourse to harsh punishments, including long prison terms and executions, is clearly seen in law. In order to find social and legal needs, mankind usually achieve their goals with the help of legal actions. In terms of the diversity of these needs, a variety of legal practices ...
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Excessive legislative recourse to harsh punishments, including long prison terms and executions, is clearly seen in law. In order to find social and legal needs, mankind usually achieve their goals with the help of legal actions. In terms of the diversity of these needs, a variety of legal practices have emerged. One of the characteristics of this diversity is the suspension of legal acts. Meanwhile “Intention” holds an important role in Law and legal actions are interpreted by intention. Our will is the only creator of legal acts. Therefore, there is no other way to understand the suspension of the will than to analyze its nature. Current views have sought the position of the suspension of the will in the creation and origin. New and different theories are presented that have taken steps to critique past theories. It is clear that in this way, the suitable analysis to be accepted is the one that is applicable in all aspects and types of legal actions and is more compatible with practical practice and the real will of the creator. In this study, the suspension will be examined with this view. For this purpose, the originality of jurisprudence and its rules must be emphasized. So, one should not turn to unrelated approaches of other sciences that are not compatible with the subjects of jurisprudence in order to understand the nature of law. From this perspective, special attention is paid to recognizing the nature of the obligation arising from the expression of the will, as a method of correctly understanding the nature of the suspension.
Private Law
Dr. Seyyed Mostafa mohaghegh damad; khashayar esfandiari far
Abstract
Law and justice are closely linked, and decisions that do not conform to justice and fairness are not willingly executed, leading to resorting to all kinds of deceit to escape from it. The link between law and justice can be observed in many judicial decisions, and one of the manifestations of justice ...
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Law and justice are closely linked, and decisions that do not conform to justice and fairness are not willingly executed, leading to resorting to all kinds of deceit to escape from it. The link between law and justice can be observed in many judicial decisions, and one of the manifestations of justice in judicial decisions is the lawsuit for damages by the plaintiff. Nowadays, in various contracts, especially commercial ones, the pledgee tries to put pressure on the pledger and to ensure that he she fulfills the pledge, sums of money are assigned to the pledge agreement as a consideration. In some cases, the pledgee, for various reasons, such as economic fluctuations or negligence and shortcomings, refuses to perform the contractual obligations (in part or in full), resulting in encountering an enormous amount of contractual loss, which sometimes exceeds the contract value. In this type of litigation, the role of judges and, in fact, the judgments are very strong and some courts consider the "principle of interpretation in the light of the whole contract", "the administration of justice and fairness as a rule" and "the illegality of the condition", deviating from Article 230 of the Civil Code and order payment of the obligation by modifying its amount or removing the above-mentioned condition and holding it in accordance with justice. In the present paper, several instances of judicial opinions are mentioned in this regard and their arguments are analyzed.
Private Law
Mohammad Sardoeinasab; Peyman Aghababaee Dehkordi
Abstract
Abstract:The subject of this paper is the analysis of the nature and validity of price adjustment clause by paying the difference at the time of payment of the last installment. The unpredictable changes in commodity prices in the market have led to, in sales in installment, sellers cannot set a part ...
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Abstract:The subject of this paper is the analysis of the nature and validity of price adjustment clause by paying the difference at the time of payment of the last installment. The unpredictable changes in commodity prices in the market have led to, in sales in installment, sellers cannot set a part of price allocated to installment, so they designed the above mechanism. This term concludes that, in the sale of installments, the last installment has been adjusted and the buyer is required to pay rest. In this paper, using a descriptive and analytical method and referring to the main sources, after analyzing the various forms of the above mechanism, it is recognized & this result has been achieved, If understanding of Gharar, and summarizes in assurance, this term will be correct. The judicial procedure also recognizes it's as valid. Keyword: installment sales, condition about performance of an act, corollary term suspended, adjustment, open price, Gharar.
Private Law
Hasan Badini; Mohammad khakbaz
Abstract
Inflation affects fulfillment of financial obligations or non-financial contracts with financial effects such as marriage portion in marriage contract. Inflation renders fulfillment of obligations sometimes impossible or delayed and sometimes with great distress and constriction. Solutions must be devised ...
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Inflation affects fulfillment of financial obligations or non-financial contracts with financial effects such as marriage portion in marriage contract. Inflation renders fulfillment of obligations sometimes impossible or delayed and sometimes with great distress and constriction. Solutions must be devised in such conditions for just interpretation and execution of contract and prevention of abuse of right by the obligee as abuse of right is prohibited (Principle 40 of the Constitution law and Doctrine of LA ZARAR). Means such as cancellation of contract by the obligor using option of impossibility of submission of consideration, granting just deadline to the obligee, adjustment of contract, claim of delay damages or day price in delayed monetary obligations can help balancing between the parties' rights. However, it must be taken into account that making contractual conditions just needs to be in compliance with valid legal principles. Also, a solution for a legal issue is not necessarily similar to the other one due to the special relativity of humanities in general and law in particular and the fact that justice is a relative, flexible and fragile concept.
Private Law
LATIF EBADPOUR; sayed mohammadsadeg mousavi
Abstract
Agency is subrogation and based on the majority of Shi'a jurisprudents and Iranian civil law an irrevocable agency is a kind of agency in which the agent's agency or the failure to dismiss him as a condition for the outcome of the contract is required. Today, irrevocable agency has become more prominent ...
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Agency is subrogation and based on the majority of Shi'a jurisprudents and Iranian civil law an irrevocable agency is a kind of agency in which the agent's agency or the failure to dismiss him as a condition for the outcome of the contract is required. Today, irrevocable agency has become more prominent among traders than what it deserves and the trade conventions of the past decade have considered the irrevocable agency as a contract in which a person (the client) through obtaining the cost of his financial rights and signing the document gives that property or right to another person (agent) and cannot have any claim over that property or right. However, the condition of the agency or not being dismissed during necessary agreement does not change the nature of the agency and does not result in the change of the nature of agency from permission and subrogation to an eternal phenomenon. With such a condition, the client cannot dismiss the agent and in other sentences the permissible contracts, such as its dissolution due to the death and insanity of both sides, will not be influential. The present article aims at highlighting the weak points of an irrevocable agency and presenting a new pattern capable of replacing with it. The proposed template is a "transfer of sale right contract'' which is qualified enough to compete with death and insanity. ''Right of sale" as one of the components of property right has the necessary capabilities to replace the permission and representation. The focus of the text is on the fact that this capability should be proved taking into account the existing legal capacity so that any possible shortcomings can be solved through legislator's intervention.
Private Law
morteza ghasemzadeh; fatemeh nouri
Abstract
If person owe to another with different reason and pay sum to paying off his debt; the article 282 civil law authorize to him for choosing that for which debt is this payment. In order to entitle the debtor for this selection; some conditions are needed; among the most momentous of these conditions is ...
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If person owe to another with different reason and pay sum to paying off his debt; the article 282 civil law authorize to him for choosing that for which debt is this payment. In order to entitle the debtor for this selection; some conditions are needed; among the most momentous of these conditions is the amount of payment and debt. In this regard there is a dubious assumption that shows there is conflict in some assumptions with article 277 that seems according to legislative supportive. Approach in article 282 and interpretation in favor of the debtor; all qualities shall be covered by the above article. Regarding the time interval that debtor has authority to exercise his above right different approaches is stated. In one hand existence of proofs in article 282 on the basis of deviate from the chosen method in French law and attention to jurisprudential comment in regarding of debtor’s option.In the other hand existence some theories base on staying the debtor’s right at the time of quarrel. It is all enlightening that debtor’s option in selecting one of the several debts in article 282 is absolute and conditioning both time of debt settlement and litigation time.
