سعید بیگدلی

Under French law, it was necessary to enter multiple contracts in order to carry out a group operation, and there was ambiguity regarding the sanction and its principles in the event of the disappearance of one of them. Sanction sometimes entailed nullity, termination, or lapse. The reform of the French Civil Code on 10 February 2016 has opted for the sanction of lapse for the interdependence contracts in Clauses 2 and 3 of Article 1186. Regarding principles, pre-review jurisprudence sometimes relied on theory of cause, the indivisibility of obligations, and condition and accessory to justify the lapse of interdependence contracts, which have introduced ambiguity in the principles legalizing reform of contract law. Three conditions are required under which the lapse of an interdependence contract applies: 1) realization of the group of operation, 2) disappearance of the contract which is the prerequisite for the next contract or impossibility of the next contract, and 3) the contractor's awareness of the unity of the operation. Given these three terms, if the central contract is annulled, terminated, or lapsed for any reason, other contracts related to the original one will lapse. The Iranian legal system's approach to the lapse of interdependent contracts is unclear, the doctrine addresses it without due attention, and jurisprudence does not provide a sensible judgment. This article attempts to introduce this new concept (lapse of interdependence contracts) and its principles, scope, and effects.

The definition and basis of legal representation in justice should be sought in its previous sciences and in the discussions of "normative legal philosophy". In proxy, proxy and permission from another is important, which is based on the intellectual, moral and social foundations of nations in the history of civilization. In this article, an attempt is made to find the roots of one of the foundations of normative legal philosophy that is related to the field of mysticism, which is trust and mystical representation, and the place of representation in mystical and legal intellectual foundations is taken into consideration and in comparison with legal representation, the role of intellectual, spiritual and moral fields in judicial sciences should be explored and with the library method and by referring to the primary sources of these two disciplines, to clarify the conclusion that representation has a wide meaning, a branch of which is rooted in mysticism and it is also based on trust. From the legal point of view, the ethical condition, respect for the client's interest, trustworthiness and keeping secrets are observed in it.

One of the shortcomings of Napoleon's code was the lack of "lapse" of considerable contracts, which was recognized by French doctrine and jurisprudence. Therefore, they tried to propose a codification in various civil law revision projects. Thus, in Decree No. 131-2016, February 10, 2016, the Law of Obligations and Contracts, a new institution called "caducité (lapse)" was envisaged in Articles 1186 and 1187 of the French Civil Code. This institution describes the status of a contract that has been entered into quite validly, but then loses one of its essential elements due to a subsequent event. The result of this situation, is the discharge of the obligations of the parties to the contract. Iran Civil Code does not define such an institution, but examples of caducité (lapse) can be deduced from some provisions of Civil Law and other laws. In general, the reasons for lapse of the contract can include the deterioration of the subject of the contract, the loss of its cause, death or incompetence in the obligations of the person and If suspensive condition fails the prescribed period provided in the suspended condition that any occurrence of the recent assumptions may lead to the termination of the contract. Lapse occurs automatically and its effect is not retroactive. Thus, in the opinion of the authors, the provisions of Iran Civil Code are incomplete in this respect, and the establishment of such an institution can be useful.

The attempt to fully compensate for the losses incurred by the victims may be seen as the most central principle of civil liability. The origin for many developments in the field of civil liability has been the attempt to maximum compensation for losses and not leaving any damages to persons without remedy. An examination of the criteria of tortious liability in Islamic jurisprudence shows that this system of thought and its capacities are rich enough to fully compensate for the undue losses inflicted on persons. However, some legal writers consider the scope of material compensable losses in Islamic jurisprudence to be very limited and they believe that moving around the jurisprudence circuit in the field of civil liability would mean leaving many material losses to individuals without compensation. Investigating the reasons and evidences of this claim and a comprehensive examination of the subject in various  Islamic schools of thought shows that this theory disregards the reality of the views expressed in jurisprudence of  Islamic schools of thought, because this limitation of the idea for ​​compensation is mainly due to the Hanafi jurisprudence, which sometimes due to its narrow interpretation of considering objects as property and sometimes for specific jurisprudential reasons or specific interpretation of certain rules in Islamic jurisprudence, has practically limited the circle of the losses to financial affairs, that cannot be generalized to all Islamic sects. Though, the scope for recoverable financial losses are not the same in other Islamic schools of thought.

Collective loss which in its general sense includes losses suffered by the whole members of a set and in its special sense is the loss incurred on the totality of a set, without it necessarily contains the detriment of the individual members,has today drawn the attention of different countrie's law for various reasons. In the meantime, one of the basic questions, is the possibility of its claim by collective legal personality. Despite the importance of this subject and the necessity of determining its legal status, sufficient attention has not been paid to it in domestic laws; and judicial precedent has no specific judgment in this regard. This writing,meanwhile the attempt to study the subject in the accepted framework of rules and regulations governing the law of Iran, has tried to study it in French Law and taken its generalization to Iran's law into accounts. Accordingly, it seems, despite the current differences in the two legal systems in terms of legislation and case law, the law of Iran can also enjoy its present legal potentialities to move toward opening the ways of accepting this claim in its domestic law, as France did.

Article 221 of Iran's Civil Code which is related to damages resulting from non-performance of contractual obligations and its terms, doesnt have a clear nature both because it has no clear jurisprudential precedent and because of non-compliance with its foreign analogues. So, what appear in the legal writings are not the same or uniform; some have considered it as resulting from the silence of jurisprudence in the contractual liability and others have argued that the reason for its legislation is to cover the defects of jurisprudential tools governing the compensation. Any of the views expressed, faced with difficulties which are hard to be accepted. According to the author, legislator, for various reasons, has tried to attribute the contractual compensation to the contract and the partie's will; what has different results than other analyses and meanwhile ensuring the rights of the injured and compensation of damages, has also reasonable practical consequences.

When someone accepts an obligation and bears its responsibility, it’s expected that the other party would also fulfill his/her obligations. When one of the parties refuses to perform the contract on their own volition, the prevailing theory in Iran’s law is that the judge, by the promisee’s request, will force the refusing party to deliver goods or perform the contract’s obligations in proportion to the issue. If the compulsion on the contractual party was not effective, the beneficiary of the contract could perform the contract’s subject at the promisor’s expense in the contracts, which do not rely upon people’s personalities, and if all these tricks did not work, it would be the turn to rescind the contract. However, in most legal systems of the world the right to force the promisor by the promisee and the right to rescind the contract are beside each other. In Shiite jurisprudence, there are firm and cogent views that prove the right to rescind the contract along with the right to force the promisor to perform the contract for the promisee in the case of the promisor’s refusal to perform the contract. There is no stipulation of rules regarding this issue in Iran’s Civil Code. In fact, there is no general rule in this respect, but this matter has been mentioned in the conditions chapter and some legal articles. Most Iranian lawyers are inclined to the Linear Theory (first compulsion then rescission) in the course of performing a contract, but the Transverse Theory is also provable based on the generalities of the Civil Code.

Discussion of the root of contractual and tortious liability, and their unity or multiplicity is one of the most important and effective comparative debates between the two fields of contracts and irrecusably obligations (obligations by operation of law, obligations ex delicto); this is the issue which has not been judged correctly by the legislature in the law of Iran and many countries and has paved the way for the guidance of doctrine and case law. But, neither the judicial precedent nor the view of jurists of different legal systems, in this field, is the same. Among others, "Tank", the famous international French author, as one of the most outstanding lawyers in the fields of civil liability and comparative studies, whilst examining this subject- matter in various legal systems, has attempted to express his view on this issue with the expression of the legal position of the leaders of the two important Common Law and Roman- German legal systems and the most important drawbacks and justifications of belief in distinctions between these two liabilities. It seems that with the review of this matter's position in the civil law of Iran, the view of the mentioned scholar, based on the duality of contractual and tortious liability and yet practical unity among them, is generalizable in the law of Iran, too.

Producing Genetically­Modified­foods plays one of the key roles in addressing the increasing needs for foods. The development and increasing use of GMfoods، despite its benefits and advantages،causes its­own problems and challenges، as well. The exclusive characteristic of these types of products and the human and environment-related effects have made discussion over this issue twice assignificant. Among many legal challenges lies the problem of how to determine civil liability’s ­basis of these products that has brought about controversies throughout international instruments and legal systems. Available international instruments regarding this issue include The­Cartagena­Protocol­on­Bio-safety،which Iran officially joint itin1382; in­addition،Nagoya–KualaLumpur­Supplementary­Protocol has been enacted on liability and redress of these products. In this paper، in view of the fact that domestic rules have­not stipulated anything regarding this issue،it’sbeen tried to determine the status of the mentioned issue in international instruments as­well­as obtaining an appropriate basis conforming to Iran’s law. Byconsidering international instruments and different viewpoints in Iran’slaw،strict liability seems to be fitting and complying with both Iran’s­law and international instruments.

Under Iran’s legal system incompetents are protected through various channels namely in part by nullyfiying or ruling ineffective the legal actions taken by the same. Further, to gurantee and safeguard their interests, particular agents are to be delegated to administer on their behalf their legal affairs. Thus, Iran’s law has provided for certain establishments as to serve the purpose including custodianship, administration [of will] and guardianship. Save the above, to guarantee the interest of incompetents are further protected, the law has designated the Prosecuting Attorney with the duty to oversee the actions taken by the above three delegates, as the case may be, taking necessary measures where required. The founding of nonejudicial protective service organizations such as State Welfare Organization [Sazman Behzisti], Protective Service Committee [Komite Emdad] and Martyre Foundation [Bonyad Shahid] has led to most of the protective duties originally entrusted with the Prosecuting Attorney be practically carried out by the said organizations, thereby giving rise to the need addressed by this article to study and discuss the interference of such duties and the conflict between their functionality.

Formation of the legal transaction and its constitutive elements and also the defects which may occur to the volition during its constitution are among the main issues of law and jurisprudence. Among the considerable arguments in this area, is the conflict of external and internal volition in creating the legal act, so as to decide which one is considered as principle and dominant.Though the external and internal volition are frequently in accordence with each other, they dont match to each other at some time. So, in such a case, what aspect of volition should be considered as criterion? Discussion in the area of domination of the external or internal volition are among issues which has significant consequences having regard to validity and voidness of legal acts and to the interpretation of contracts and unilatral legal transactions. Through the looking over the legislative system, judicial precedent,the views of scholars both in law and in jurisprudence, and prevailing attitudes regarding this debate in legal systems, it seems that contrary to the thought of those who suppose it is the internal volition which is principle and think the external volition confirmatives related to the proving process, external volition in some areas contract law is debatable and has original, protective, instructive and supervisory rol.

Observance of women’s rights in various sociees is a point that it is in the consideraon. This concern is obviously visible in two axial documents of “Universal Declaraon of Human Rights” and “Internaonal Covenant on Civil and Polical Rights”. Nevertheless, these two convenons couldn’t convince acvists’ women rights, so they enterprise to approbate another convenon in the name of “Eliminaon Discriminaon against Women” that they could gait more effecvely in this way. Islamic countries with envisaging to bases of Islamic laws have a long background in case of observance of women’s right in compression with non- Islamic countries especially western countries. Nevertheless, today’s world selected a specific method parcularly in internaonal fields for evaluang the rightness’s claims of governments toward officiang women’s rights. Consequently it is necessity to examine this issue from reports of this convenon.

Custody is an important family issue in different legal systems. Taking into considerations the significance of children in society, the custody & the way of training children is of vital importance, which have not been fully considered, and there is no legal Justification for them in Iranian civil law. Therefore, it needs further elaboration. It is worthy to note that in compare with similar institutions there is no clear definition as far as the duty, rights& the obligations of custody are concerned.On the other hand, there remain some unresolved questions, which are necessary to clarified. Consequently, courts seeking help from legal resources and authorities and the department of justice show that its controversial arguments & ambiguities, which have to taken into consideration still remain. The present article while attempting to clarify the custody rights& its relevant obligation needs further elaboration and finally it presents some solutions.

Obligation in the universe of law substantially comes from the agreement of persons (legal acts) or results from the events which are binding at law (legal events). The fact that one can create, at his sole will, a binding obligation for him or another, is not justifiable in the view of some lawyers while others considered it as an exceptional issue. This article examines and analysises holding ones unilateral will obligatory toward him in a way so as to be the origin of a legal right for the other party. Futhermore,in this writing,besides the inspecting theoretical opinions of those who agree and disagree to this institution, it has been tried to introduce what is more acceptable to the criteria of domestic law by referring to its possibe examples in the law of Iran.

Obligation to payment of money may replace another type of obligation done according to current cost. Here, the quantitative change of money is acceptable provided that its value is decreased or doesn,t match with the one fixed in the original obligation, because the given obligation is nothing but a replacement of the main one. Sometimes, however, this obligation is valid per se and the obligated party has no other option but to pay a fixed amount at the time it is due. Quite obviously expecting an amount higher than the original is unjustifiable. However, high inflation and the decrease of money value has caused the payment of time monetary obligations to be unjust. Therefore, some experts take the changeability of the quantitative amount of money in time as compatible with the general rules prevailing in monetary obligations, in a way that it could compensate for the loss. Others, on the other hand have denounced it as something which is against both the legal and religious principles. This article offers the pros and cons of the argument disinterestedly and examines the legal aspects of the issue.