فصلنامه مطالعات حقوق خصوصی
سال چهل و یکم شماره 3 (پاییز 1390)

In business format franchising agreements, Franchisee, while dependent to other party of the contract (Franchisor), follows the method of business belonging to Franchisor. Franchisee use of the system leads to many obligations such as payment of franchise fees, secrecy of Know how, non competition and making available all necessary factors to use the system. Irrespective of the Law which governs the contract, franchisor always focuses on laws governing franchise agreement in hosting country. Because of different laws affecting the franchise contract and particular nature of some contractual terms pertaining to Franchisee obligations, in some cases contract clauses related to Franchisee obligations are in contradiction with local laws of Franchisee country. This conflict can amount to either invalidity of the contractual term or posing a limitation on its way of performance.

One of the most important issues in international criminal law is defenses. This issue has also significance in national law. In civil and criminal law system, there is a different approach with this question. The lawyers have named this question as forgotten point in international criminal law. International and national jurisprudence is often different and controversial in this matter. There are some reasons for this controversial and differentiated. This paper is studying about defenses in international and national criminal law from view point of comparative and criticized the rules on this matter. The defenses (Grounds excluding from criminal responsibility) are regarding in this article are: self - defense, mental incapacity, intoxication, coercion and necessary, the defense of superior obedience. In this article we are looking for to describe which approach is taken by international criminal court statute.

Apparently all of the Jurists and lawyers have agreed that any sale contract transfers the ownership of the thing sold, in a way that this "transfer of ownership" is considered as inherent consequence of any sale contract. However, this clarity faces with serious doubts in case of analysis of all types of sale contracts as some lawyers deny the inherent description of transferring the ownership in some kinds of sale contracts, obviously.In this essay, we are going to elaborate on this point that the sale contracts are all transferor in terms of ownership of object matter and as soon as conclusion, they apply their effect. Therefore, the existing difference between these lawyer's opinion from one side and the implication of Civil Code rules - that are based on transferring of ownership in all types of sale contracts - on the other side, raised from difference between the majority's opinion in Shia Jurists with other legal systems in defining the concept of "ownership tie" that the Civil Code has accepted the former one and lawyers followed the later.

One of the most important duties of insured in the insurance contract, is to inform the insurer, fully and accurately. This obligation arises in three stages:before conclusion of contract, during the contract and after occurrence of the insured event. The review shows that the insured’s duty before conclusion of contract is reduced from a primary obligation to a secondary one. This means that insured is under duty to inform insurer only toward his clear questions. In addition, this duty will be continued after conclusion of contract if new circumstances lead to aggravation of risk or realization of a new risk. Finally after occurrence of the insured event it appears as a duty to declare the insured event. The article examines the obligation in these three phases with a comparative view.

Arising of loss entitles the third party to the compensation. In this respect, more often than not, the entitlement of the third party finds its justification based on voluntary principles and sometimes based on involuntary ones. If the third party cannot find defense based on voluntary principles, he or she has to resort to involuntary ones. The possibility of multiple compensation methods could also be observed in confluence or when opting for responsibilities. The focal point of this paper shall be on the voluntary principles only and it will be analyzed if it is likely for a person who is not a direct party to a contract to resort to voluntary principles when taking a compensation act to the court.

Attempts made by international organizations and institutions on globalization of law are taking place in two stages of "recognition" of acceptable rules in the world community and their "proliferation". This two-stage process is demonstrable with relevant examples in international law and practice. International organizations whether governmental or non-governmental, play an important role in recognition of global rules and norms. This role can be seen in international treaties and other binding documents as well as in soft law. On the other hand, ratification of treaties and adaptation of international law to domestic laws by States are the most important and transparent forms of proliferation of the rules throughout the world. The trend on "admission" and "proliferation" can also be traced in many other international documents and regulations dealt with in this paper.

Complete and non-defecting delivery of construction is one of the important obligations of construction contracts. However, unlike in most of the consuming products, the troubleshooting of construction needs passages of time, since hidden defects appear through time and usages of consumer. Although after the delivery of construction the claim of consumer is not admissible, in hidden defects it is accepted. On the other hand, assessment of the quality of used instruments in construction needs passage of time in order to have a precise judgment. Therefore, two kinds of guarantee is considered in delivery; a guarantee in which a consumer can request removal of defects (temporary guarantee) and a guarantee which is applicable after the determined delivery and completion of first satisfaction guarantee period. The present article while examining the nature, kinds and effects of delivery, is looking for the abovementioned instances.

Knowing of formation of a legal rule is an efficient way to recognizing and assessing of that rule. Anticipatory breach doctrine became apparent in Common Law when the court in Hochster versus De La Tour case (1980), hold that a party could breach an executor contract prior to the performance date and injured party entitle to sue at once. Before it, courts had made a negative answer to this matter and expressly had denied it. Courts argument was that it is impossible to make a sentence before having a subject. But, refusing to accept repudiation, with certainty of future beach, would mean the waste of economic opportunities and remaining parties idle and delayed.

The Safavid dynasty was the First Iranian Centralized Administration, which Chose Shia’a branch of Islam as the official religion and the Judicial System for Iran. In Safavi Period the State Officially established two Separate and distinct Court System. First the state Courts (the urf Courts) under the supervision of the Secular Minister of Justice (Divan-Begi) and the Secondly the Islamic Court (Shari’ah Courts), Which Functioned under the Supervision of religious Judges (Sadr). A correct understanding of the Contemporary Judicial system, requires proper investigation a boat the development of it in the past time. The current research will Strive to Carry out this investigation in Safavid era.

After forty years, the act of motor vehicle compulsory insurance was amended In 1387(2008).The act has changed some areas and protected third parties rather than former act. Some protections are: increasing third parties, development of sphere of Insurance and acceptance of an insurance policy as a mortgage in courts. However we see some ambiguities in the late act. The article analyses changes in the act and provides some resolutions for it's ambiguities

In Islam, every person who knowingly abandons one of the obligatory acts or does one of the forbidden acts regarded as sinful and must be punished. To sentence some body to prison is one of the criminal rules in the Islam criminal system for the offenders. There are three types of imprisonment for the offenders: 1- to put in jail is sometimes considered as a penance 2-imprisoning is sometimes considered as a punishment 3- sometime it is neither a penance nor a punishment but it is a precaution act to stop the others form spoiling the rights of the others. This article mainly tries to study the concepts and definitions of penalty, punishment and imprisonment form the perspective of narrative and jurisprudent evidences.

Unequal bargaining power of parties to a franchise contract and their unequal access to information that may be effective in determining the consideration of a contract; has caused different legal systems impose obligations to franchisor to poise the contractual balancing. Commitment to expose accurate and comprehensive pre-contractual information about all aspects related to franchise is the most important obligation in order to achieve the above objective. Judicial decisions of leading countries in franchising services show that an important part of contractual disputes related to this commitment. This article also analyzes purview and remedies of the violation of that obligation. In this regard, nullity, relative nullity and adaptation of contract are discussed. Acceptable theory in Iranian civil law is analyzed.

General Agreement on Trade in Services (GATS) -as one of the most important Agreements of WTO- provides some principles and commitments on services such as rail transport services. Countries applicants for accession to WTO have to correspond their legal and economic structures in the field of this section with GATS principles. However, working groups of applicant countries can make some exemptions on flexible principles of GATS because some principles of services section are flexible. Iran, as an observer of WTO has to identify contrasts of rail transport regulations and Laws with principles of GATS and provide legal suitable and effective solutions. However, this important issue has not been studied in Iranian legal literature; therefore, this article tries to consider GATS principles and Iranian contrast regulations and suggest suitable and practical solutions to the legislator and working group.

The court orders, inter alia, the provisional injunctions, are normally aimed to impose some specific result on the parties to a proceeding. Provisional measures including interim injunctions are somehow connected to the general standards of fair proceeding. The question might be how a proceeding could be assessed as being fair while an interim injunction is being issued against one of the parties without notice. The frequency of the issuance of these injunctions in the ordinary course of proceedings at courts urges a thorough and profound survey to be conducted about the effects of such decisions on amongst the parties themselves on one hand and between the parties on the other hand. This essay tries to touch the essential of the basic concepts as well as the effects of the provisional injunctions.

The destruction of profit and its consequent liability has a crucial role in regulating legal and social relations. In contracts, like hire, sale and sharecropping and also in extra contractual liability such as destroying, usurpation and receiving, lawyers and jurists have partially argued about the subject and have tried to offer a legal and jurisprudent interpretation, in order to compensate damage the incurred suffered from profit destruction. However, in some legal works, mix it up with the alike subjects as loss of profit and according to the mistake, they came up with the lack of profit destruction liability. In this article, in addition to separating profit destruction from similar institutions, and explaining its bases consequent liability, the theory of profit destruction is presented.

The Occupation of Iraq show that Occupation is not an old expression in International Law. Lawyers have paid added attention to occupation law after Iraq occupation and ICJ Advisory Opinion about Barrier Wall(2004).The power of occupier about laws and Legislation in occupied territory is an important issue in occupation law. Article 43 of Hague convention 1907 and 64 of forth Geneva Convention 1949 are about this topic. This issue has been improved after Iraq occupation and CPA Reformations in this country. Security Council Res.1483 has added on this Vague. The necessity of acting duties of Hague and Geneva conventions in one side and necessity of doing reformations in Iraq in another side, are exist in this resolution.

Investment and transfer of technology has no boarders. Globalization is a process which affected all economic, social and legal aspects.A destiny which needs adequate decision. In this regard, economic globalization was more important than the other subjects. Studying this process and its mechanism is the firs step to making vital decisions. Free commercial transaction and international transfer of technology are major subjects in economic globalization. In this article, we will study the legal consequences and created change in the commercial transfer of technology with special reference to the basis of globalization and free trade of technology.

As a result of rule of law ideal, judges are required to act in accordance with laws. The ideal is justified by some political values: political liberty, legal liberty, personal liberty and equality. Citizens are subject only to the law not to the arbitrary will or judgment of another who wields coercive government power. But in some cases law is indeterminate. In these cases there is an important question: how can the law command when the law books are silent or unclear or ambiguous? There are three theory in jurisprudence: legal positivism, legal pragmatism and legal interpretivism. I reject positivism and pragmatism and urge interpretivism. I believe that it provides a better account of our law

The present article tries to prove that there is a reverse relation between the role of state in political society and its liability. In other words, the greater state’s interference with the political society, the less will be its responsibility and hence its liability. On contrary, making limitation to the state’s role in political society will increase its responsibility and thus its liability. French and Canadian legal system, as well as Quebec provision legal system, are discussed and studied to provide evidence in this regard.