مجله نامه مفید
پیاپی 76 (اسفند 1388)

According to Article 337 of the Iranian Civil Code, "Each of theseller and buyer is entitled to restrain from delivering the thing sold orthe price until the other party is ready to deliver it".The right that the parties of contract of sale can avoid deliveringhis/her subject of obligation until receiving his/her own considerationof subject of obligation is called the right of withdrawal.Contrary to what some Iranian civil law commentators believe thatthe above mentioned provision is against the rule and limited to whereexplicitly provided by the law, the dominant view in Imamiya figh andIranian law sees it as being according to the rule and nature ofcontracts of exchange and thus extending to contracts other than thatof sale.On the other hand, in some fighi and legal writings, the right ofwithdrawal is considered to go beyond the framework of exchangecontracts covering all involuntary exchanges.In the present article the authors have tried to draw an even broaderscope for the right of withdrawal through proposing a general theory ofright of withdrawal in mutual obligations based on the reciprocity of thetwo obligations and their equality in a way that it goes beyond therelationship between the two obligations which in turn involves allcases that obligations are mutual.

If someone defending a claim says: “I have paid the creditor thecredit,” though the confession is not literally compound, its meaningconsists of two parts: one expressly indicated which is “paying thedebt” and the other implicit meaning which is “being in debt”. Nowthe question is whether in such cases – Conceptual complexconfession- the speaker admits his debt and is liable to pay the debt,unless he proves to reject the creditors claim, or no confession to debtis made. In other words, is it required, in such cases, to acceptdivisibility or indivisibility of confession? Famous Imamitejurisprudents have asserted the divisibility of the confession. Yet, thefamous theory is focused on in this article and it seems that theopinion is not accepted in Iranian Civil Code. One of the results of thisresearch is that, considering the Civil Code, the legal principles andjudicial precedents and some of the authentic jurisprudent opinions,the indivisibility of the confession is generally accepted and even noobjection is seen in the lawyers’ views and the case law. In Frenchlegal system as well as those of the Islamic countries, according tolegal texts, the lawyers’ opinions and also judicial precedents, the ruleof the indivisibility of the confession is accepted and, with theexception of the rare cases, it is prevented to divide the confession tothe detriment of the confessor. However, in the legal system of thesecountries, unlike that of Iran, there is a distinction between judicialand non-judicial confession and the indivisibility rule is limited tojudicial confession and in non-judicial confession, decision on the(in)divisibility is left to the judge to be made according to the generalrules of evidence.

Among the documents on contract law, the Principles of EuropeanContract Law (PECL) are the best result of the endeavors for theunification of European law in the realm of contract law. Afterexpiration of a short time from its publication, the PECL find asuitable place in Europe and outside the Continent. The Principleshave two important features: they contain the European legal traditionas well as respond the needs of modern world in the area of contractlaw. The PECL do not bind the courts. They can only work by their forceof persuasion. They are treated as soft law which was drafted andpublished by academics who are not members of political parties andgovernmental organs. However, the main purpose of the EuropeanPrinciples is to serve as a first draft of a part of a European Civil Code.The PECL may also perform a function similar to that of theAmerican Restatement of the Law of Contract, which was publishedin its second edition in 1981. The Restatement is a non-binding bodyof rules which purport to state the Common Law of contracts of theUnited States. It offers its rules to courts and arbitrators which needhelp and advice. It is part of the lex mercatoria.

The transition from traditional to the modern law and the formationof legal modernity results from changes in their bases which in turnaffects other elements of the legal order and at least as a historical andsocial reality in western societies, makes us familiar with the essentialparameters of the evolution of the legal order. Also it helps us to knowthe place of religious legal order of Iran compared to the evolution of

Right to life is the most fundamental right of human beings. It hasbeen noted and emphasized in some human rights instruments.Although we do not see the term "right to life" in Islamic literature,we can infer this basic right from Islamic sources because it has beenstrictly protected in the holy Quran and other texts. The holy Quranprohibited killing of children. The Committee on the Rights of theChild has identified four general principles as the object and purposeof the Convention on the Rights of the Child. One of thesefundamental principles is "the right to life, survival and developmentof the child" (art. 6). This right relates to immunity from executionand the prohibition of abortion. Article 37 of the CRC provides thatcapital punishment shall not be imposed for offences committed bypersons below 18 years old. States shall pursue the fullimplementation of this right and take appropriate measures to protectthe life of children.

Diplomatic non-intervention is one of the manifestations of theprinciple of non-intervention which is considered as one of the basicprinciples of friendly relations among states. International law hasmade harmony between the interests of the sending and receiving statethrough recognizing immunities for diplomatic envoys and declaringtheir duty to respect the law and regulations of the receiving state andnon-intervention in domestic affairs. Since the era of prophecy,Muslims have used diplomacy and political delegations to inspreading Islamic teachings and establishing international relations.This cultural-propagating principle doesnt deny the principle of noninterventionbut rather embraces it as a basic principle.

This article demonstrates the falsity of two common statementsthrough a historical analysis of the usage of the term "right". Thestatements are: 1. The issue of having a right is invented in modernperiod; 2. The Islamic culture is influenced in this regard by Westernone.The article first shows that "right" was used by authors in medievalperiod in their works, and that, the concept of having a right does notdepend on any particular culture or literature. Certainly, human beingsadopted rules, however rudimentary, in the early stage of social life toprevent chaos in the society. One of the implications of having laws iscreating the rights and duties. It is nonsense to say that there is asystem of law in a society without any system of rights and duties.The sacred Islamic texts indicate that the word "(having a) right"was used at the beginning of Islam (in the 7th Cen.), that is, 700years before western authors. This argument says that the discoursetraditional to the modern law. This research, therefore, intends todemonstrate parameters of the modern law and to put light on the issue ofhow and in which field and through which changes, these parameters andcharacteristics are formed? On the other hand, according to the Westernlawyers, the legal system of Islam is a traditional system. Does that meanthat the religious legal system of Iran is foreign to the parameters of themodern legal system? If this is not so, then which parameter is refused bythe Iranian system and which parameter is accepted? In its evolution themodern law has also been in crises. These crises have changed certainfactors of the modern law and have brought divisions in the modern lawitself (liberal modern law and social modern law). How much is the shareof this division in the amount of parameters of legal modernity and in therange of accommodation of the Iranian legal system with the mentionedparameters?

The Iranian Electronic commerce Act has accepted the formationof any evidence in the form of data message. Therefore, document,testimony, oath and confession are capable of being electronicallyformed. Notwithstanding this, the possibility of formation of evidencein the form of data message is different from the issue of presentingelectronic evidence in courts. Electronic document can be presented tocourt by using the maintaining means of recording. Testimony mustbe physically presented in court, thus testimonies that are recordec inthis means may only have a presumptive value. If a confession ispresented by means of electronic instruments and in the form ofonline communication, it seems to be considered as a confession madein the court.