عبادالله رستمی چلکاسری

Contractual relations between persons are under the rule of laws and Shariah, the text of the contract and customs, and the disputes of the parties are settled based on these sources. Ethics in contracts can be examined from two aspects. First, ethics as a legal source to be cited by the judge in issuing a decision, and second, ethics by each of the parties in contractual relations that must be practiced. Although the execution time is not one of the basic elements and reasons for the formation of an obligation, just as its absence is not considered as an obstacle and the obligation is correct with these characteristics, but the problem is that the jurists are unknown, hesitant, uncertain, the ambiguity of the execution time, even the delegation of authority. The time of execution to the obligee is considered invalid based on paragraph 2 of Article 233 and Article 401 of BC due to the spread of "ignorance to other parties" and the creation of "gharar". Whereas, the above articles do not imply invalidity not only by verifying the intention and identifying the issue of the obligation, but also along with other factors and tools to verify the time of implementation, the time of the obligation can be determined and the liquidation of the obligation should be considered only limited to the external factor. As the international documents in question (Convention on the International Sale of Goods, Principles of European Contract Law, Principles of International Commercial Contracts and Common Reference Framework Plan) are like this. With new arguments, while examining the role of time in commitment, the present research discusses the effect of its lack in commitment and seeks to prove that the performance time that can be determined from the commitment and the performance time that can be determined with the help of the new interpretation, are similar to the performance time effects. It is determined by the obligation that under these conditions, the obligation is based and in case of violation of the obligation, the obligee can resort to the obligee for any of the compensation methods, unless a serious external factor occurs during the execution of the obligation, which in these conditions or during the life of the obligee is terminated or, contrary to the opinion of jurists, it is justified by good faith and fair behavior and the obligation is adjusted.

An injunction, as a remedy in tort law, is a court order prohibiting a person from doing something or requiring a person to do something. Given the wide range of subjects of these orders, this article examines what tests are established in English and Iranian law for its issuance and what obstacles can make the courts reluctant in issuing an injunction? injunctions may be issued before the final judgment as a temporary remedy or in the final judgment as permanent remedy. This article shows that, in general, injunctions in both legal systems is absolutely based on the discretion of the court, and whenever the court finds that the best remedy is the injunction, and damages cannot adequately compensate the victim’s losses, it issues the injunction. Accordingly, if the court finds that the issuance of an injunction violates the liberty of persons or inflicts unjust losses on the defendant, it refuses to issue the injunction and award damages instead of an injunction. But in English law, the loss of public resources cannot override the victim’s right to the injunction. Whereas the public interest in Iranian law have been considered by lawmakers and can be an obstacle to the issuance of an injunction.

The individual independence of judges, as one of the components of judicial independence, means that the judge is completely free, based on facts and legal standards, and without any pressure or influence from any of the departments, government or other sources to decide. The present study aims at investigating the extent to which the guarantees of individual independence of judges, provided in the basic principles of the judiciary, are observed in Iranian and Afghan laws. Research on this issue will help us better harmonize the laws of these two countries with the internationally accepted principles in the field of judicial independence. This library research, which has been carried out in accordance with the laws of Iran and Afghanistan, shows that in both countries strategies have been envisaged to ensure the individual independence of judges, including the selection process, job security, criminal and civil immunity of judges in Iranian law and the different disciplinary proceedings of judges. However, there are some shortcomings in this area that are addressed in this study.

The cooperation principle of the parties and the judge in the settlement of dispute is new issues in the civil procedure that have been raised in recent years. The principle of cooperation is defined to mean law enforcement. In other words, the parties and the judge participate with each other to settle a dispute. Although in some of the new rules, these principles can be seen sporadically, but the principle of Transnational Civil Procedure Act 2004 provides the main foundation. By examining the laws of the country, it found that the principle of cooperation, although some of the material can be seen, But this means is not applying the principles of cooperation in the legal system and Our legal system is lacking the new principle. After studying French law, transnational civil procedure and Iranian law we can say that the principle of cooperation can be applied including determination of local jurisdiction, set a date for trial,arbitration, peace and reconciliation, how to deliver securities, How to handle the hearing, etc

Premature marriage has the potential of harming children. As such¡ recent laws have provided sanctions against this type of marriage to protect children’s rights and well-being. This practice is praiseworthy in itself. According to Islamic narratives¡ the age of majority for marriage is 9 full lunar years for girls. However¡ the Iranian Legislature has specified this age to be 13 full solar years. Article 50 of the Family Protection Law passed in 2011 has specified blood-money and imprisonment for a husband in case of any physical harm to his under-age wife due to coitus¡ in cases where the marriage is without the consent of a guardian or court order. However¡ after a short duration of time¡ the Legislature enacted the Islamic Penal Code in 2012. This latter law entitles the under-age wife who suffers fistula- a clear example of the physical harm provision of the Family Protection Law- to receive alimony until the death of either spouse¡ in addition to the aforementioned diyya and dowry. By analytically comparing these laws¡ it is clear that the provisions of the Family Protection Law on fistula is still in effect and has not been superseded by the Islamic Penal Code. This study defines and delineates the responsibility of a husband in these types of marriages and seeks to promote and protect children’s rights by analyzing the relevant provisions of the said laws.

The rejection or rebuff of transplanted organs refers to the case in which the immune system of the recipient's body repels the transplanted organ. The prevention and reduction of such repulsions are the main concern of transplant surgeons and recipients. Liabilities associated with repulsion and its side-effects have a contractual nature; also, unlike other surgery-related liabilities, here there are two contracts, namely, ‘Organ Donation Contract between the Donor and Recipient’ and ‘Treatment Contract’. If rejection is due to the malfunction of the donated organ, of which the donor was aware, it is ascribed to the ill-will of the donor, and he is held liable for the side-effects as stated in the terms of ‘The Implied Flawlessness of the Transplanted Organ’. As for ‘Treatment Contract’, liability associated with organ rejection follows the general principles legislated in ‘The New Laws of Islamic Penalization,’ passed in 2013. It implies that the surgeon and factors causing rejection are held liable and are required to make amends for any adverse consequences. Usually, according to Beneficence Rule, the donor and the heirs of a recipient who is brain-dead are immune from liability or responsibilities regarding the side-effects of transplantation. Also, no liability is considered for a recipient who is proved to be the reason for organ rejection. The annulment of the main purpose of transplantation and ensuing disputes and law cases deserves a thorough analysis. The researchers intend to conduct a survey about the abovementioned issues in the Contemporary Iranian Medical Laws.

Training is an important element of human welfare and prosperity in which the family plays a critical role. The fundamental question is that what are the examples of the rights and duties of parents in the rearing of their children according to Iran legal system and human rights documents? When do they begin? Are parents free to choose their children's training techniques? Do they have the right to use punishment, correction and discipline in the training processes? An analysis of law in Iran and human rights documents clearly shows that a child's training begins after its birth. The physical, psychological and moral training of a child, the provision of facilities related to compulsory education, religious training and the child's punishment as well as the child's obedience and respect for his parents, are just some of the rights and duties of the parents from the viewpoint of civil law. In human rights documents, punishment is not accepted as training and a child's obedience of and showing respect for them is followed by silence. In the discussion of the child's religious training, as well, only the parents have the right to teach their children religious teachings according to their beliefs. This article briefly analysis the above mentioned rights and duties.

Generally any act of organ transplantation requires that reflect the will of the parties in a legal action format. This legal act is a private agreement takes place on the transfer member between the donor and recipient and the essential and basic objective of such contract is Health and improvement preservation of transplanted organ recipient. The occurrence of Squirt or rejection of transplanted organ phenomenon not happen final purpose of transfer member for reasons. providing rejection of transplanted organ specially in the legal relationship between living donor and recipient may be claimed due to mistake in the basic description of subject matter that the same to be transplantable to specific recipient individual and or the contract frustrate due to existence implied resolutely condition which arising from obligation mid achievement of results parties conscience. Or the failure to achieve the desired result Creates right of revocation and compensation for the recipient. If rejection of transplanted organ must be determine regard to general legal principle consideration to government conditions on contract in any case and perhaps the contract has been void or frustrated and or is revocable regard to necessity and need to achievement of results under particular conditions of agreement between parties. If the contract is silent cannot be accepted none of the sanctions listed as a rule and should be governed presumption of validity and necessity due to the special nature of contract and this interpretation that obligation of organ donor has been performed by separating transplanted organ of his body.

There have been various ideas and opinions by jurisprudents and lawyers regarding the conditions of the revocable contract. One of the conditions that may compromise the parties to this contract is the requirement of time. This condition may be indicated in the text of the revocable contract، in the condition of this contract or be separately brought in other contracts. Some believe that these conditions are absolutely void and ineffective; others consider invalidity as a condition-oriented factor only and don’t specify it to contracts. However، according to others، the terms of the contract are those inserted in the type of contract، and therefore if the contract is necessary، its condition is necessary too، and if the contract is revocable، the condition in the realm of natural appropriateness and main contract will be valid and binding. Considering the modern and early jurisprudents'' opinions and views on various types of contracts and different lawyers in various revocable contracts، the condition of time inserted in revocable contracts، seems not to be absolutely enforceable. However، the inclusion of such condition، provided that such contracts are not broken، is valid. Intransigence and will of the main parties in signing contracts and its impact on the spread and reduction of the scope of the commitments، however، should not be ignored، even though the obligations of the contract are revocable. Because having accepted the rule of law in Article 10، and the commitment to respect the will، the legislatore ensures such commitments.

Both in legislated law and among scholars, earnest money has received little attention, and has been considered as a trivial issue throughout the related texts. Therefore, dealing with this issue would be a new and fruitful investigation here. There are many subtle differences and similarities between the nature of earnest money and other legal structures that caused it to be stated for the justification and investigation of the nature of earnest money. Of course, those untouched differences will be targeted in this text. Despite the silence of legislator and generality (brevity) of civil law regarding this issue, by and large, paying earnest money does not and cannot lead to a selling contract, because the requirement and commitment has not been established between corresponding persons, so it would not have the conditions of selling contract. Obligation, unilateral commitment to selling, mutual commitment to selling, and suspended contract cannot be the suitable justification of earnest money. That is why after analyzing the juridical proofs and foundations of law in Iran, it can be concluded that earnest money has its own specific nature which is considered as the partial payment of the total contracted price, and if contract is made later, it is considered as the main price.

Before 1978, in Iran the value and validity of the letter of promise was not much doubted by the court judges; but, after Islamic Revolution in Iran, the pacta sunt servanda of fulfilling such contracts has been challenged and discussed. Following the issuance of a circular by the then Judicial High Council, the majority of judges rendered these documents invalid. Thus, the letter of promise was gradually replaced by the letter of sale. Nevertheless, a letter of promise should not be mistaken for an executed letter of sale. In fact, it is a document which guarantees the obligation to fulfill a sale in the future and as an agreement to transfer, it is a sample of primary conditions and is independent of nominated contracts, whose validity is disagreed upon by Shi’ite religious scientists such that majority of jurists consider these conditions invalid and only a few of them have rendered it valid. With consideration of the presented reasons, it seems that the second opinion is more correct and that there exist necessary jurisprudence reasons for accepting the validity of a primary condition and the letter of promise as its important sample.

So far as confession in civil cases is at head of other evidences and has known definitive of act at many circumstances, thus legislator hasn’t known hearable, but immediately after knowing no hearable the revoking the confession, because of probability of proving contrary with whatever has expressed by confession or no realization confessor’s considered conditions, which he has confessed with attention to those conditions, has forecasted cases which with their attainment that confession be ineffective, such as when be proved confession’s decay, or its foundation at mistake and cases similar to this, of course until have been proved those plea’s, accomplished confessions will valid and effective. Review of revoking the confession in civil cases hearing possibility, which will have determinate role at that evidence’s proofing power, makes the subject of this paper, which will be done with review the of jurists and lawyers ideas.

There is no agreement on idea about the time of conclusion the contract by correspondence or the contract between absentees as that four different theories has been making: 1-the theory of declaring the acceptance2- the theory of sending the acceptance 3- the theory of receiving the acceptance 4-the theory of acknowledgment of acceptance. According to the legal basis in each legal system and its interpretation from parties’ intention for conclusion the legal act, each of the four theories has advocates. The theory of reception has adopted by International Convention of Vienna in 1980 and English legal system the theory of sending the acceptance and in Iranian legal system the theory of sending the acceptance are more capability and acceptable than other theories.

The right of suspension entitles a contracting party to suspend the performance according to rules of law, contractual terms or as a result of force majeure. The same right may also be established as withholding the performance, according to the provisions of civil law in connection with contract of sale or other exchange contracts, until such time as the other party shows willingness to perform. Both rights are based on reciprocity of the contractual obligations and interconnection of the reciprocal obligations. The right of suspension of the performance has been recognized under the provision of the standard general conditions of contracting, as well as under some of Iranian multinational contracts. The suspension as a result of force majeure although is not expressly been envisaged under Iranian law of contracts, it is recognized by necessary implication of contract law rules. The right of withholding which is recognized under Iranian civil and commercial laws is mainly related to contracts with single performance, while the right of suspension is recognized in contracts that need to be performed during a gradual process. At the same time the legal standing of suspension was not clearly discussed under Islamic law literature but it had certainly been contemplated by Islamic law jurists in relevant situations. On the contrary the right of withholding has been expressly discussed. There are similarities between suspension provisions under FIDIC and the general contracting form. However, the differences are regarding the fact that under general conditions of contracting the right of suspension is mainly a unilateral right while under FIDIC form of the terms and conditions of exercising the right, Its duration, extension and damages arising out of suspension are contractually provided for. Consequently except for the difference in terms of contracts with one time performance or gradual performance, the legal nature of withholding and suspension is the same and one may apply the reasons and legal basis of withholding to suspension, admitting the fact that suspension is an independent legal concept.