نشریه دانش حقوق مدنی
سال ششم شماره 1 (پیاپی 11، بهار و تابستان 1396)

Contra-Proferentem rule states that when a contract provision is vague, the court interoperates it against who has drafted the agreement and favorable to the other party. For years, this rule has been invoked and used in standard contracts. Therefore, the main challenge that we will cover in this article is rationales and applications of it in various areas of law. At the end of this study it is revealed that the rationales of the rule are: reducing the ambiguity in contracts, decreasing unfair terms and redistribution of wealth and its main function is to support the weaker party in standard contracts, asymmetric agreements and etc.; because today one-sided and standard contracts, on grounds of their advantages, are widely used by the stronger party, and deployment of this principle provides the possibility to modify the bargaining power of the parties.

Estisna contract is made between a client and a manufacturer. It is conducted in this way that the client asks the manufacturer for a specific product. After that the manufacturer accepts the order and promises to prepare raw materials, manufacture the product, and deliver it at the due date. The client is also obliged to pay the agreed fee stated in the contract. There is disagreement about the nature and validity of this contract between jurists and legal experts. Some consider Estinsa contract as an independent sale contract, others as forward sale contract. Anyway this contract is considered to be a valid contract in Iranian law. Todays this contract can play a significant role in the Islamic banking system. Using the framework of this contract, banks can finance projects of the public and private sector. They make this contract in two ways: some times as an investor and a representative of the client who demands the product, and sometimes as an intermediate.

The exception of literary and artistic properties rights for educational use was proposed to national legislators in the Berne Convention. Different countries are allowed to predict this exception in their legislations based on their local and native conditions. This exception promotes the use of literary and artistic works for educational purposes. Although this exception is challenged with technological advancements and private agreements, legislators are able to contribute to the scientific and cultural growth of their nations and take development actions by making proper policies. The result of this process is the development of a balance between right owners and public interests. This article was primarily aimed to obtain a meaning of educational use using the descriptive-analytical method of library and desktop studies of international conventions and national laws. The next objective was to assess the success of these laws in attaining the goals set by the legislator. Finally, it was concluded that the notion of training application differs based on the legislation of each country, but it shall be interpreted within the framework of the three-step test. Although the enforcement of technical and legal laws by right owners undermines the exception to some extent, the legislator is allowed to prevent the subversion by taking measures such as negating the effect of agreements opposed to this exception or commissioning the payment of proper dues.

Legislation, interpretation of the law and its implementation has urgent need to recognition, understanding, noting and fundamental consideration. Basically knowledge of principles of jurisprudence, as a methodological discipline, can be used in different fields of knowledge and all Islamic sciences; especially in juridical researches and for law discipline students. A considerable portion of Iran›s private law is derived from Islamic jurisprudence or influenced by it. Even the terms used in contracts, conclusions, conditions … are the same as juridical terminology. Since it is impossible to use the Imami jurisprudence without Principles of Jurisprudence, it must be admitted that the principles of jurisprudence have a great impact on the understanding of Statutory Law in Iran. Nowadays, more or less, jurisprudence and law students are faced with the question to what extent are these texts related to their educational and professional purposes. While the» Alvasyt fi Usul al-fiqh” book which is now a textbook of Principles of Jurisprudence in PNU, compared to similar texts, has clear advantages, it has some weaknesses that are mentioned in this article. Surely, through editing, translating, or writing commentaries on it, these deficiencies can be rectified.

Since under the assignment contract complete transfer of ownership rights is done, descriptions and conditions of such contract reminds us of the traditional form of sale contract. On the other hand, possibility of transfer of patent rights is also assumed in indefinite contract, under Article 10 of the Civil Code, or with the independent legal nature and as a designated contract. The procedure of guiding people to use settlement agreement in patent office must be added to the assumptions. Despite barriers and objections, assignment of patent in the form of sale is justified with conceptions compatible with the attitude of opponents. Lack of a special rule for assignment of patent, despite that which is in article 48 of registration code of patents, industrial designs and trademarks, identification of an independent nature and designated title for assignment agreement seems impossible. Moreover, although the present procedure in presentation of settlement agreement is free from the objections proposed to the use of sale framework, it offers an agreement form that its generality, absence of expression and restriction of contractual conditions and promises, can›t fulfil the needs of the owners of innovations and technology. Prefiguration of special contractual forms via legislator with specific legal rules will be compatible with complex nature of such contracts and consonant with international system.

Databases can be a valuable commercial assets and the law protects them in two ways: under the law of copyright and the IP sui generis rights. The originality requirement for a database means that some databases are not protected under copyright even if substantial investments have been made to produce them; and it has been discussed whether such investments should also be protected, for example, by a sui generis right. There may have been considerable effort in the creation of a database. This effort is known in intellectual property law as the sweat of the brow. Database rights specifically protect this effort and investment; and investment includes any investment, whether of financial, human or technical resources. A sui generis database right is considered to be a property right, comparable to but distinct from copyright, and exists to recognize the investment that is made in compiling a database, even when this does not involve the creative aspect that is reflected by copyright. In this article, after analyzing the concept and necessity of establishing an IP sui generis protection and its history in the field of non-original databases, had surveyed its elements in international and national level. As a result, establishment of this protection is necessary to determine the rights and duties in this area and eliminate ambiguities and uncertainties.

Responsibility and liability has been created in jurisprudence in respect of private ownership and individual’s property. If anyone breaks the respect of his life and property, liability also is nullified. Rule of emprise in jurisprudence is an evidence of this issue. This rule is similar to the assumption of risk in English law. It means that whenever a person, with knowledge of risk, puts himself in dangerous situation, and this causes damage to him, he has no right for compensation. It is therefore necessary that these two rules be carefully examined and conditions, scope and manifestations of them be clarified, as well as their similarities and differences.