فهرست مطالب جلیل قنواتی

The issues of obtaining objects in law are under the method of “fulfilment” of the obligation and the issues of obtaining of property in jurisprudence are under the method of the “delivery of property.” Law wants to obtain objects on the basis of “theory of commitment” and jurisprudence wants obtain property based on “theory of delivery.” The present method of performance at the law in order to achieve the right is the “fulfilment of obligation” according to these theories and the present method in jurisprudence in order to obtain property is the “delivery of property” according to these mentioned theories. Including that the law will solve the problems based on “violation and breach of commitment” and “subrogation in death” and jurisprudence will solve the problems based on “violation and breach of property” and the “existence of obligation” and each of which have different effects and verdicts. Therefore, the hierarch of Civil Code of the Islamic Republic of Iran, which is inspired by two sources of jurisprudence Fiqh (Arabic: فقه) and Roman law is like one person with two different personalities, because it has adopted Roman law in the case of “contracts and obligations in general,” and the basis is commitment and the basis is adoption in the case of “specific contract and the obligatory suretyship” that has been adapted from Jaʿfarī jurisprudence.

civil liability law ( tort law) in Iranian legal system has a three-pronged structure and is based on a variety of principles: A structure in the civil code with the title of zaman qahri, a structure called "civil liability" in the civil liability Act and a structure entitled "causes of liability" in the Islamic Penal Code. In fact, the civil liability law system in Iran is eclectic from Islamic law (shariah), French law, and Germany and Switzerland law. An eclecticism that not only did not solve the problems of tort law, but also added to the problems and conflicts and made the civil liability law system inefficient and incapable of solving problems. The main reason is that in contract and tort law the Islamic legal system is based on the theory of ownership and the French and German legal system are based on the theory of obligations. The difference between these legal systems is fundamental and it does not seem possible to resolve the conflicts of legal provisions in systems that have different bases. Inevitably, Iranian legal system either has to accept the system of civil liability based on the theory of obligations or the system of zaman qahri which accepted by Islamic jurisprudence based on theory of ownership. In this article, we consider first the distinction between these two systems of tort law and then the solutions to eliminate the challenges in Iranian law in this field.

Although resorting to arbitration is a common and desirable method for resolving international commercial disputes, insolvency disputes, remain within the jurisdiction of judicial, executive, and governmental institutions due to their connection to general economic and commercial public order. Therefore, resorting to a single institution for adjudication is ruled out and practically, these disputes resolution are dealt within the framework of multiple and independent institutions. This issue is more complicated regarding enterprise group insolvency. Facilitating disputes in this regard requires coordination and cooperation among role-playing institutions in this field including courts, liquidators, and other stakeholders. Due to the failure to establish uniform institutions, UNCITRAL has drafted a model law to coordinate insolvency proceedings in enterprise group. Consequently, regarding the necessity of understanding and achieving this model law results, this research, through a descriptive and analytical method, studies the dimensions and infrastructures for establishing communication and coordination among institutions and advancing coordinated and effective proceedings, while addresses adjudicating institutions independence under the UNCITRAL Model Law. On the other hand, it examines the anticipated arrangements for various stages of the proceedings

As for the buy-out clause, if the player pays the buy-out fee, he/she can terminate the contract prematurely without specifying any cause. The current research principally aims to analyze the legal nature of the buy-out clause and what are its legality conditions in FIFA regulations and Iranian law. Regarding the nature of the buy-out clause, different perspectives have been raised. From a perspective, the buy-out clause can be classified as a liquidated damage clause and is subject to prohibition of exorbitant and unfair liquidation damage provision. According to another perspective, the nature of the buy-out clause is a contractual right. The buy-out fee is in consideration for the exercise of contractual rights. Currently, the latter opinion is preferred by FIFA. Under Iranian law, basically, the nature of buy-out is valid and acceptable, but according to the Iranian Football League’s new charter of registration of employment contracts for the season 2023-2024, the use buy-out clause in the contract of Iranian players is prohibited. The findings of the present study with the analytical-descriptive approach indicate that the nature of the buy-out clause is a conditional opt-out right. Termination by this method should be deemed to be based on the parties’ (prior) consent. The player can trigger the buy-out clause and terminate his/her contractual relationship unilaterally and prematurely upon the unconditional and complete payment of the buy-out fee.

Jurists have always been interested in the methods of transferring ownership rights of immovable property as a legal fact. Different legal systems' attitudes toward the simple or complex registration of property rights have had varying effects on the social and economic structures of each society. Possibly, the consistency of real estate transactions in Germany, and the disorder of this field in Iran can be attributed to the attitude towards the creation and transfer of ownership of immovable property, despite the Iranian government's recent support of the positive developments in this field. In Iran's legal system, according to the theory of ownership and the principle of the intentionality of ownership contracts, which have deep roots in Ja'fari jurisprudence, the right of ownership is considered to be based on nothing more than the effect of a legitimate transaction, and "registration" has only a declarative effect and is only confirmed if it matches the "truth". In German law, "registration" is deemed to have a "creative" effect and act independently of the original binding contract, thereby transforming the property right into a compound right. This research, using a descriptive - analytical, and comparative method, while expressing the concept, difference, and effects of each of the two causal and abstract systems of transferring ownership of immovable property, has come to the conclusion that without a doubt, in order to organize transactions in the field of real estate and maintain economic order and public interest, Changing the perspective on how to create and transfer ownership rights in Iranian law is a necessary and inevitable thing that can be justified by identifying "registration" as a part of the ownership right process and a necessary condition for the transfer of this right.

Whereas contracts are the legal tools for the substantiation of economic transactions, in order to respond to the needs of economic actors in accordance with the evolution of economic approaches, they have changed. Developments in economic schools can be classified in one sense in the form of classical, neoclassical and behavioral schools. The main purpose of the study is to examine the developments of contractual justice from the perspective of economic developments in the context of these schools. Recruiting a descriptive-analytical design, the study revealed that commutative and distributive justices are the foundations of contractual justice and complement each other. Commutative justice has always been the basic principle of contract law; however, its scope has expanded beyond the concept of fair pricing in the pre-classical era. Distributive justice, after the advent of neoclassical economics, became more prominent at the same time as the need for government intervention in the economy to address the side effects of a free economy. The school of behavioral economics, by questioning the hypothesis of rational choice and the neo-classical school of economics, raised the need to pay attention to the cognitive biases of individuals in decision-making, especially in the consumer market and in terms of standard terms. It has, despite the optimization of the concept of justice in contracts, at the same time, created fears of excessive government protectionist interventions in contracts. In general, commutative and distributive justice complement each other in establishing contractual justice.

The codification of contractual laws necessitates that a contract falls within the protective framework of either definite or indefinite contracts. It is crucial to ascertain the type of the contract based on both evident and latent aspects. A significant matter within the realm of contract law, closely linked to delineating the rights and extent of obligations of the involved parties, is contract description. This issue arises when the parties, either due to unfamiliarity with the contractual system or for various legitimate or illegitimate reasons, select an incorrect title for their contract or enter into a contract with no explicit terms. Consequently, the judge may either deem the parties' choice satisfactory or encounter uncertainties in determining the contract, potentially resulting in deviations in contractual effects. In contemporary times, novel legal relationships emerge among individuals, which necessitates a careful examination to determine the appropriate contractual classification. Consequently, it becomes imperative for the court to devote sufficient attention to the contract description to accurately ascertain and declare the extent of contractual obligations. The purpose of this research is to effectively assess the true nature of the contract by employing specific criteria and legal tools. The article seeks to address the following questions: What role does the judge play in determining the apparent title of the contract? Can the judge accurately describe the contract type without objection from either party, and in what legal contexts does contract description arise? Is the practice of contract description recognized in the legislation of other countries and Islamic jurisprudence? Furthermore, what criteria should be considered to provide a comprehensive description of the contract title? The author of the present work believes that when describing a contract, the judge should not be bound solely by the apparent title of the contract. Instead, the judge should discern the true nature of the contract during the legal proceedings and attribute its effects accordingly to the legal relationship between the contracting parties. Through the current research, which incorporates the viewpoints of Imamiyya jurists, as well as jurists from foreign and domestic jurisdictions, and employs a descriptive-analytical approach, the following conclusions have been drawn:Contract description involves uncovering the underlying essence of contracts by considering the parties' genuine intentions and prevailing customs. In the realm of contract law, the concept of contract description emerges when parties make errors in naming the contract or assign it a misleading title for various reasons. In such cases, the judge should not merely rely on the explicit language of the contract and consider themselves absolved of responsibility. It is insufficient to act solely in accordance with the apparent intentions of the parties. Instead, when dealing with such contracts, the judge must look beyond the surface-level words and uncover the true title or nature of the contract. The identification of the legal nature of contracts and its application to the legal forms of contracts is a widely accepted and justifiable practice in legal systems worldwide. Nowadays, in international legal documents, there is a prevailing trend to prioritize the true substance of the contract over its apparent form. However, this principle holds true unless the hidden contract is tainted by fraud and deception. In such cases, while the contract may be valid between the parties, it cannot be invoked against third parties. The prevention of formalization in contracts holds great importance for the judge, primarily to avoid falling into the traps of simulation and deviation from the true essence of the contract. Furthermore, determining the nature of mixed or ambiguous contracts is crucial, as it justifies the need for contract description and assists the judge in uncovering the applicable legal principles governing the contract. In cases where the parties have not specified a particular title for their contract, the judge bears a significantly more significant responsibility. Upon the occurrence of a dispute, the judge must first ascertain the type of legal relationship involved, as this forms the basis for rendering a judgment in the case. During the process of contract description, the judge possesses the authority to discern the title of the contract by employing various criteria. These criteria include considering the verbal statements of the contracting parties, giving weight to the true intentions of the parties, and taking into account the customs governing the relevant legal relationships. The language used in the contract plays a significant role in guiding the judge towards understanding the parties' actual intentions, particularly regarding the validity of the contract. However, it is important to note that the wording of the contract serves as a guiding principle for determining the type of legal relationship, rather than being the sole determinant for the inclusion or exclusion of specific contract language. Additionally, prevalent customs within the realm of contract formation, such as guarantees, can help resolve any ambiguities for the court regarding the primary effect of such contracts, aiding in determining their effects and legal implications.

Our lawyers introduced the "General Theory of Obligations" into the civil laws, imitating the French legal system. In such a way according to their belief, what connects the sub-categories of the property chapter is a set of rules and principles that govern how an obligation is created, transferred, and lost. Our civil law, with a meaningful possession in the content and regardless of its western origin, classified these categories under the title of “cause of ownership".In this fundamental and descriptive study, the researchers are looking for the difference between the relationship of the property subcategories in French and Iranian civil law, and what is the legal nature of the relationship in Islamic law. The scope of the research is summarized in the subcategories of the property chapter, which are classified under the following categories: possession, contracts and non-contractual indebtedness, pre-emption, and inheritance. The question that is raised here is, what is the difference between these two legal systems, in which property is classified under the title of obligation and the title of ownership? The authors believe that what has caused our civil law to classify these subcategories of property under the title of "cause of ownership" is the "property theory “which is the ruling discourse in the Islamic legal system about property. What causes these sub-categories of property to be systematically connected is the title "property". Therefore, the topics of possession, contracts, non-contractual indebtedness, pre-emption, and inheritance under the chapter on property are referred to as a set of rules andprinciples governing property that govern how property is created, transferred, and lost. Accordingly, property theory can be considered as a crossroad that solves most of the legal problems with property categories requiring passing through, which determines the necessity of its design in the form of a general theory. Property that is under the protection of the general concept of "economic value" under various forms, including object and benefit, without resorting to obligation, is owned by individuals, which depends on the difference in the type of property, the method of submission and the guarantee of enforcement of property violations. Because the ruling theory under the chapter of property in Islamic law is ownership, it can be said that in Islamic law, instead of the topics of contracts and non-contractual indebtedness, they are applied to a set of rules and principles, which are about how to create an obligation, transfer and lose. In this way, based on the fact that ownership is created at a certain time, exists, and finally ends, the legal system aims to meet the needs of each of these courses. The legal system recognizes the reasons for creating an ownership relationship, by which ownership is created between a person and property. After creating the ownership, it is necessary to transfer it and because the ownership relationship is between the owner and the property, one of the effects of this relationship is the owner's sovereignty over the property; so The legal system allows the transfer of ownership by changing the parties’ relationship and based on the general theory of ownership, it designs "ownership loss" in which it is categorized the causes of ownership loss.

Nowadays, consumer contracts, which contain a wide range of contracts, are made in the standard form predominantly. Despite their economic benefit, these contracts have bad result for the consumer, In such a way that the trader, with exploitation of his superior position, arrange an unfair contract to his advantage and to the detriment of the consumer.The law can not be passive against this injustice but legal mechanisms to deal with unfair and one-sided terms of consumer contracts are inefficient, because that provisions, according to the neoclassic economics, believe that informational Asymmetry and Inequality are the main cause of unfair consumer contracts, And so, uses information disclosure strategies as the basic tool to solve the problem of unfair terms of consumer contracts, this approach need to be reviewed and changed. This new approach is taking the advantage of the findings of "behavioral law and economics". Accordingly, the main problem of consumer contracts lies not only in the information asymmetry between the consumer and the trader, but also in the consumer’s real perception and decision-making processes that are affected by cognitive biases and errors. in this article, we will show in a descriptive-analytical way that the EU law approach, which includes the most detailed and advanced regulations in this field, as well as the consumer protection regulations in Iranian law, are based on the information paradigm, derived from neoclassical economics insights and failed in fair and equitable consumer contracts conclusion.

The conflict of justice and freedom is as old as contractual law. Despite the controversy over the justice protection and to restrict freewill , for many years, freedom of contract dominated the path to the interest of individuals and distributive justice in the community. But, over time, the economic relations of societies, shook the assumption of freewill. The scope of the application of standard contract, more than other contracts, is based on the justification of parties freewill in using these forms and of course, saving time, costs and having a superior position in imposing contractual terms. Abuse of this freewill, justifies the restriction of this principle and tendency to observe contractual justice as well. Lack of freewill in contracting parties, inequality of transaction power and market failure, are the main reasons for tendency toward controlling standard contracts. the author, in addition to comparative review of these reasons, tries to evaluate their importance regarding to the available criticism.

The legal literature regarding "Ehsani" (benevolence) legal acts is not very strong and there is no complete definition about them, and their nature is not properly identified. In this article, by stating the elements of benevolence of a legal act, it has been concluded that benevolent legal acts are a group of legal acts that bring benefits to the other party without any consideration or guarantee. It seems that the right way to know the nature of legal acts is to analyze the nature of offer and acceptance. Offer and acceptance in a bargain (exchange contract), involves the transfer of the ownership of considerations. Therefore, most of jurists have considered offer and acceptance as "Inshaee" (creative) . But acceptance in benevolence legal acts is simply the possession of the property from the other party. In these acts, acceptance does not involve the transfer of ownership and it is  only consent to the requirements of the offer; As a result, benevolence legal actions consist of a request and consent to it. Consent to a legal act is a legal event that is realized without the need for an "Insha" and with silence and non-refusal; Therefore, the nature of benevolence legal acts is the offer based on none refusal.

The main issue of the current study is that, from a jurisprudential point of view, does the contract necessarily have to be based on conventional outcomes such as ownership, matrimony, etc., or is it sufficient for the fulfillment and validity of the contract by mutual commitment and agreement. Some scholars have believed that contracts that are based solely on commitment and do not include conventional outcomes are not an example of a contract, and as a result, are not considered compulsory. Moreover, the inclusion of evidence of fulfilment to the condition of these contracts is doubtful. In this study, while explaining the nature of the contract, this theory is criticized and it is proved that, although the dominant discourse of Islamic jurisprudence in contracts is the discourse of ownership and the existence of conventional outcomes, contracts based on commitment are also legitimate and compulsory. After proving that the ‘aqd (signing the agreement) does not require conventional outcomes, the legitimacy of the contracts based on obligation is examined with regard to the nature of the “condition.” One of the important effects of proving the legitimacy of such contracts is that contracts such as istiṣnāʻ (sale in the form of a manufacturing contract) contract, qolnāmeh (informal preliminary agreement) and the like will be compulsory in the form of commitment for commitment.

Iran's legal system provides absolute protection to owners in such a way that negligence of the owner has no effect on his right. This issue is discussed both in non-registered and registered documents. The result of this is the increase in negligence of the owners as, sometimes the cause of victory in a lawsuit is citing the negligence, and sometimes due to the lack of development of registration facilities, owners cannot be informed of the occurrence of the crime timely and take preventive measures. Negligence of the owners makes committing the crime of transfer of other’s property easy and so, trading order and social welfare will decrease. Due to the difficulty of committing crime. obligation to protect his right imposes a lower enforcement costs on the society and will reduce crime and lawsuits. This duty contains the necessity of announcing transactions and taking care of the properties and preventing encroachments of others. According to Sharia’s texts, imposing this duty is not against the Sharia. The penalty for violation of this duty could be, as the case may be, inadmissibility of non-registered documents as an evidence of current ownership lonely and sometimes confiscation of property from the owner. However, imposing such a duty requires the provision of facilities that, unlike registration formalities, have the characteristics of ease and speed.

 Due to the wide range of drug contracts and medical equipment available today, legislators must pay close attention to the formation of such contracts in order to ensure justice in this area. This amplifies the significance of the current study›s examination of such contracts. The goal of this article is to examine drug contracts and medical equipment contracts and show how the principle of justice affects these types of contracts in this field.

This research was organised using the descriptive-analytical method, which involved reviewing different sources, including books, papers, statutes and legal documents.

According to the study›s findings, Iran›s current laws do not include a comprehensive definition of pharmaceutical products and medical equipment. Furthermore, the regulations and organisations that govern pharmaceutical product advertising are lax, resulting in a slew of issues and difficulties in supporting and protecting drug and medical equipment consumers and vulnerable parties.

An examination and evaluation of the law of the Organization of the Medical System, as well as other relevant laws and regulations, reveals that information and insurance services are governed by provisions in Iranian law. A comparison of Iranian and US law in this area concludes that we can protect the weak side of the contract, ensure suppliers’ interests, and comply with justice in such contracts by accepting contract amendments, considering development risk rules, accepting the strict liability theory and anticipating the creation of a fund such as the Bodily Injury Fund to Special measures in Iranian law, among other basic steps.

An important condition for a contract to be concluded, is the agreement of the parties; but this agreement may be disrupted due to a mistake. Recognizing a contractual mistake and locating the boundaries of which is done based on two approaches: Objectivism and Subjectivism. According to the subjective approach, the parties' mentality and attitude state forms the contract, and in case of a contradiction in their mentality towards the contract, their mentality state is given precedence. But, in the Objective approach, objective criteria determine the conclusion of the contract in case of having disagreements, and the contract is concluded based upon the parties' apparent agreement. The key question addressed by the authors in this essay is that which of the aforementioned approaches is used to identify the contractual mistake and establish the parameters of its indemnification under legal systems of Iran and England? Contrary to what is generally said, Iran's legal system is Objective just like the England. In this research, which is based on the analytical-descriptive method, the authors first identify the basic similarities and differences of Iranian and English legal systems, and by examining the issues related to contractual mistake, by rejecting the purely subjective approach, they identify the state of objectivism in the two mentioned systems.

Today, there is less dissidence in the limitation of implementation of the principle of contractual freedom. Especially, the principle cannot be considered as a basis of legitimacy and validity of the contract in B2C contracts or where a person in a weaker position than the other, or in standard contracts or contracts that are not negotiated by the parties. The imposition of any unjust and unfair condition that is contrary to good morals, public order and the obligatory rules is invalid. This prohibition cannot be violated by concluding a contract or including a condition in the contract. The sanction of the implementation of such a violation is the invalidity of the legal action. The uniform judicial precedent no 794 expresses the same view. The surplus profit condition is contrary to the general economic order and contrary to the obligatory rule and violates the prohibition of the legislator. Inspired by this this uniform judicial precedent, the courts should in any other case easily rule on the invalidity of a legal act which has violated a prohibition, and in principle prohibitions in the banking and monetary matters

The relationship between food and human health has led to the adoption of various laws in different countries regarding the effects of civil liability due to production defects in food and also the role of insurance industry and compensation funds in achieving these effects. Research is ahead.

Because this study analyzes the data qualitatively, it lacks a clear statistical population. Obviously, the criterion of data analysis is based on logic and reasoning and based on the study and inference of laws and legal doctrine, we analyze hypotheses and data.

Ethical Considerations:

 In the present study, preserving the originality of texts and fidelity in speech quoting, as the most important ethical requirements have been considered by the authors.

The research findings indicate the effectiveness of the insurance industry in realizing the effects of civil liability due to food production defects by predicting pure liability for producers and also creating a system based on compulsory insurance. In the case of compensation funds, although the special fund for damages caused by food production is not specifically provided for in the legal systems of the United States, European countries and Iran, but similar and close legal mechanisms can be used, which is one of the most important They can be called liability contracts as well as contracts for the intensification of liability.

It seems necessary to use more and more neglected capacities of the insurance industry as well as compensation funds by the Iranian legislator in order to realize the effects of civil liability due to food production defects (customer compensation and punitive damages).

Although mortgage, among other forms of guarantee contracts, has the widest application due to mortgagor’s direct domination over a mortgagee and developing better confidence, jurists, relying on four reasons, have different views about receipt and objectivity of the mortgaged property. Believing in the condition of receipt and material objectivity of mortgaged property in mortgage contract which also affect civil law had led to the shortcoming of this type of contract in the modern contracts which makes inevitable a change in the guarantee structure. Mortgage aims at achieving domination by the mortgagee over the mortgagor’s property to restitute his right. Domination is a conventional matter which has different instances in different times. Material receipt is only valid in this respect and its condition in making a mortgage contract cannot be proved by any jurisprudential reason. In addition, the objectivity of property, in its modern perception, is not limited to material object. The principles of general theory of collateral include proving this view, along with proving the unity of engagement and debt, the extent of guarantee, and concluding a guarantee as an innominate contract according to which it is possible to conclude any type of guarantee contract, material or non-material, such as the tangible specified object, debts, rights, intangible (descriptive) specified object.

Oil represents a big share in Iran’s economy; thus, it is a sensitive issue for the public in Iran, and oil disputes are a public concern and provoke political debate in Iran. This article analyses the importance of arbitration as an oil dispute resolution mechanism, then, it studies the possibility of taking cases to it under international and Iranian law. To this aim, it employs a comparative legal approach to highlight factors in arbitration’s popularity among other Alternative Dispute Resolution mechanisms. Then, the legitimacy of taking cases to arbitration is investigated from domestic and international law perspectives. Finally, implications of the Iranian law on the performance of the National Iranian Oil Company in the arbitration proceedings are discussed and a recommendation to alter conditions of going to arbitration is presented for lawmakers.

The purpose of this Article is to study the possibility, manner and effects of the insertion of fundamental rights into private law, which has been done by analytical-critical method. Lawyers often apply said rights to the government, and have rarely discussed about application of fundamental rights between private parties. The concept of constitutionalization of private law could be defined as “obliging the private parties to obey the fundamental rights – such as equality, privacy and liberty - in their relationships”. As a result of this process, the nature of civil rights and obligations, distinction between public and private law, and liberal order of duty-bearers may be exposed to changes; triple challenges which, though leading to conceptual development of some private law institutes, could be justified in European law by resort to indirect effect model and in Iran, due to special literature of the people rights in Islamic Republic of Iran Constitution and Juridical structure of private law regime, by resort to direct effect. The most important achievement of this research is attention to revise the basic rights in private relationships, and to prove the Islamic jurisprudence enrichment to absorb the fundamental rights in private relationships.

The purpose of enacting laws and regulations in each country is to guarantee the fundamental rights of individuals in society by observing the principles of fair trial and not encroaching on the private rights of individuals, as well as protecting the public interest of society. Today, taxation as one of the main sources of income for governments, Due to the challenges associated with how to claim it As well as designing a dispute resolution mechanism for the collection of various taxes Based on the legal principles accepted in each country, It is a place of conflict between the government and the people.Therefore, it is necessary to form references in accordance with a model in accordance with legal principles So that the government on the one hand and the taxpayers on the other can be confident These authorities will be able to rely on the rules and respect the rights of the parties Finally, provide a just solution to the dispute And this important thing will not be achieved except by observing the principles of fair trial In a new system of proceedings that has been approved by all international legal institutions. Accordingly, various legal systems have been established regarding tax litigation Each of them may have strengths and weaknesses in terms of proximity or deviation from the principles of fair trial. In this article, by examining the patterns governing the tax dispute resolution system in Iran, Selected countries of the European Union as well as comparing the mentioned models,

The role of literary and artistic works in the cultural development of a society is so strong that many sociologists have considered the basis of education in art and have emphasized its fundamental role in the growth and promotion of society. The undeniable impact of literary and artistic works is that if these works are in line with human and religious ethics and teachings, they will result in scientific and cultural excellence, and moving along the path, will have no effect other than degeneration and decline. In view of the need to balance the interests of society in the pursuit of new and exalting literary and artistic works on the one hand and to support the creators of artworks in the creation of exquisite works on the other, this article seeks to determine whether there is a legal limitation or absolute protection of these works in Iranian law by expressing the role of literary and artistic works in society. And if the restriction is imposed, what is the criterion to apply the restriction? The results show that the absolute literary and artistic works in the teleological, ethical and human dignity legal systems, unlike capitalist legal systems based on materialism and pleasure, are not legally supportable and for determining Supported Items, must use legitimacy and legitimate rational interest criterion

This article attempts to explain the reasons for the general theory of indemnity (arsh) in Imamiyyah jurisprudence and following that in Iranian law and to prove the reasons based on an economic analysis. In this case, the results obtained from the analysis will turn the general theory of indemnity into an efficient guarantee against violating party of the contractual commitments and proper and fair answer may be given to the breaching of the contract by Imamiyyah jurisprudence based on traditional - revised - systems. In addition to explaining the reasons for classical and modern theories of economic law with an emphasis on the question as to whether the execution of the same commitment is preferred or its indemnity, the article makes a comparative study of the subject matter in common law specifically American common law. The results obtained from of the research show that the general theory of indemnity can be completely proved based on the classical and modern economic theories. In fact, it can be said that the general theory of indemnity can be a combination of the Hick’s ethical theory of performance - mainly on the basis of Kaldor's performance theory - and the priority of compensating over performing of the same commitment and the theory of objectivity that aims to remove ethics in the area of contract.

The authors of the Iranian Civil Code tried to codify and write the code based on or in accordance with Imamiyeh jurisprudence. . In the general rules of contracts and obligations, translation and adaptation of French law - which is based on the theory of obligations - has taken place, while in certain contracts it has been mainly adapted from Imamiyeh jurisprudence. The different foundations of these two sources, one based on the theory of obligations and the other based on the theory of property transferring, have caused conflicts in several cases of civil coded. Iranian jurists do not have the same view in analyzing the provisions of civil code: based on the general theory of obligations or the theory of property transferring. Citing some narrations (ahadis) and interpretations of some Islamic jurists, some believed that Imamiyeh jurisprudence as opposed to Sunni jurisprudence was based on the theory of obligations. Others, by specifying the alienation of the general theory of obligations, consider the theory of obligation as a secondary matter in Imamiyeh jurisprudence. It seems that Imamiyeh jurisprudence and most of the provisions of Iranian civil code are based on the theory of property transferring. This research answers several questions about the above mentioned matters .