عباس برزویی

Article 46 of the General Conditions of Contract (GCC), as specified in Publication No. 4311, outlines 15 grounds for contract termination by the employer. Although some of these instances may inherently lead to automatic termination or nullification, where the employer has no role or influence, the majority of termination cases arise due to the contractor’s breach or negligence. This termination right can be interpreted as a breach of a conditional obligation by the contractor. For breaches mentioned in Clause (a) of Article 46, particularly in items 3 through 6, the employer has the discretion to terminate the contract. In making this decision, the employer must weigh public interests and benefits and choose between contract termination, adherence to the contract, or seeking damages. Moreover, if the contractor expresses readiness to mitigate delays—for instance, by working at night as provided in Article 25 of the GCC—and if, according to the employer’s assessment, the contractor’s adherence to the contract would offset or lessen the damages caused by the breaches, and the resulting harm from termination would exceed the harm of contract continuation, or if the employer takes other measures against the contractor, such as compelling contract performance and claiming damages, thereby reducing harm significantly below that of termination, then, considering the analogous principle of Article 25, the exceptional nature of termination, public interest, and preference to minimize greater harm over lesser harm, the employer’s right to terminate is nullified and forfeited.

The lawsuit for proving effective fraud and deceit leading to a conviction is one of the complex and less-explored issues in Iranian judicial practice, which requires a deeper examination due to the intersection of civil and criminal matters. Some courts condition the hearing of such a claim on the resolution of the related criminal complaint, while under the general principles of civil procedure, a civil lawsuit should only be suspended when there is a complete and necessary connection between the two cases. The objective of this paper is to thoroughly investigate the legal position of the lawsuit for proving fraud and deceit within the Iranian legal system, with a comparative view of French civil procedure. The research method employed is descriptive-analytical, utilizing library resources and examining laws, regulations, judicial precedents, and opinions of legal scholars to analyze the concepts and provide legal solutions for addressing the ambiguities surrounding this lawsuit. Furthermore, the study conducts a comparative analysis between the Iranian and French legal systems concerning fraud and deceit cases, aiming to present a comprehensive and accurate approach for appropriately distinguishing and handling civil and criminal claims related to fraud and deceit.

The general registration framework has been dismantled with the implementation of the registration law of 1932 and the identification and rating of real estate in the Bureau of Distribution of Official Notices and major registration. Today, we are facing the acceptance of the registration of unknown property and the continuation of registration operations exclusively with the implementation of general registration regulations. Although the notice distribution office is the basis for accepting the registration of properties of unknown ownership, according to Article 11 of the Registration Law, which mentions the acceptance of the application for the registration of "possessor as ownership", and according to Article 24 of the Code of Regulations, which requires ownership possession to be confirmed, to accept the registration of property, and according to the orders of the supervisory board and the Supreme Registration Council, enshrined in Article 35 of the Civil Law and Article 11 of the Registration Law, first of all, referral to the notice distribution office is done to the extent that its contents are not contrary to the facts. Secondly, in the event of a conflict between the contents of the distribution book and the current possession, considering that the contents of the distribution book are presumptive on ownership and possession, proof of ownership, the possessor is granted the application for acceptance of the registration.
This article is written in a descriptive-analytical manner. The author seeks to study how effective the provisions of the declaration distribution office are in accepting the registration and whether the provisions of the notice distribution office are proof of the applicant's ownership or proof of ownership. In the assumption that the owner of the property is someone else, will the acceptance of the registration necessarily be done from the person in whose name the property is registered in the distribution office of the notice or his/her heirs or from the owner of the property? Assuming that the possessor accepts registration, is possession as ownership sufficient to accept registration, or are other reasons necessary to prove ownership?
In answering this question, one should make the difference between various assumptions:
In accepting the registration of the real estate of unknown ownership, although according to paragraph 272 of the collection of registration circulars, it is necessary to first refer to the Bureau of Distribution of Official Notices and ask the person whose name is registered in the Bureau of Distribution of Official Notices or his/her heir or the person who transferred the property from the person has been purchased in Distribution of Official Notices or by his/her heirs (directly or through an intermediary), the registration will be accepted. However, the procedure of the Supervisory Board and the Supreme Registration Council, which is admissible, is that in the conflict between the current possession (material and sensory) and the Bureau of Distribution of Official Notices, the current possession prevails. The possessor must accept the registration with the right to object of the other party (at the stage of periodical advertisement) because the notice distribution registry in the name of a person is circumstantial evidence of ownership. In contrast, according to Article 35 of the Civil Law, possession as ownership is circumstantial evidence of ownership, which is stronger than the presumption.
If the possessor, in addition to the possession, directly or indirectly claims the purchase of the property from the taxed person in the distribution office or his heirs without presenting the purchase documents or their documents are denied or doubted, in this case. Suppose the distribution office accepts the registration from the person charged in the distribution office, the heir, or the person who purchased from them, with the right of objection for the possessor (claimant of purchase by not presenting proof of purchase or denying his/her proof). In that case, the possessor who claims to purchase from the taxed person has admitted to his/her previous ownership Distribution of Official Notices, , and to accept the registration, he/she must prove the property transfer to himself/herself. This shall be done following articles 36 and 37 of the Civil Law, which he/she did not provide the purchase documents or was denied and the doubts raised and its proof need to be examined by a judicial authority. Therefore, for the time being, a declaration of acceptance of registration is made from the person charged in the distribution office, and the person claiming to buy can, after the publication of the advertisement, object to the acceptance of registration from the other party and the issue to be determined in the judicial authority.
According to the text of Article 11 of the Registration Law and its supplementary note, possession as mere ownership can be sufficient for acceptance of registration, and Article 23 of the Registration Regulations does not indicate its insufficiency. Of course, in practice, the applicant for registration usually submits an affidavit or other documentation of ownership to the registration office along with the application. On the other hand, the registration representative conducts a local inspection and investigation to verify the ownership possession, which is to verify the ownership possession, not insufficient possession as ownership.

The prohibition of Riba (interest/usury) in Islamic economics has led Muslim economists to design and introduce special financial institutions in order to avoid riba and to replace common and traditional financial institutions. During past four decades, among such endeavors to address the above objections, Muslim scholars have introduced an alternative insurance rooted in Feqh and based on the principle of co-operation. According to these scholars, traditional insurance can be replaced by Takaaful as an Islamic insurance. Takaaful has been designed to promote mutual cooperation  and fair distribution of profits/losses among all the contracting parties. So far, several contract models have been proposed based on Islamic financial regulations, such as Takaaful based on Wakaalah and Mudaarabah contract with some modifications. However, the new model, Takaaful based on Wadi’ah, is not as prevalent and common as above mentioned contracts. In this paper, an attempt is made to study Takaful based on the Wadi’ah Contract and to compare its regulations and compatibility with Shi'a jurisprudence rules.

Infrastructures play a major role in the economic development of any country; however, governors cannot afford them due to their heavy costs, shortage of budgets, or lack of tendency by any reason. Hence, they appeal to local and foreign private sectors to financially afford the projects. BOT(building, operation and transfer) is among the ways of affording such projects by the private sector usually in a form of a consortium and on the basis of a contract with the government or State corporation; it undertakes to afford and build the infrastructure in a definite period of time .Instead of the investment, profit and risks, the private sector operates the project during a definite period of time, and at the end of the period delivers the project to the government or state corporation entrusted by contract. Although, the main BOT contract is between the government and the project corporation, the contractor would sign agreements with other secondary contractors, various corporations, financial institutions, and banks to implement the projects. The multiplicity of the partners, contractors, and the fact that they are from different countries results in various risks. The risks are divided into two types, namely general and specific ones. General risks include political, economic, and legal while specific risks consist of pre-construction, construction, operation, and funding ones, each of which is of different sorts.

Governors either cannot afford infrastructures due to shortage of budgets or, for some reason, they are reluctant to finance these projects. Hence, they appeal to the methods of financing infrastructure projects through the private sector including the conventional contract method BOT (Building, Opration and Transfer). Although, the main BOT contract is between the government and the project corporation, the contractor would sign agreements with other secondary contractors, various corporations, financial institutions, and banks to implement the projects. The multiplicity of the partners, contractors, and the fact that they are from different countries result in various risks. Among other things, the benefit of BOT to governments and their motivation to resort to BOT is the transfer of project risks to the project company. However, the contractor is not usually qualified enough to manage and accept all the project risks and tries to attribute some of the risks to the other parties involved such as construct contractors, operators, providers of raw materials, and product and service customers.

In Iranian Civil Law. like in Islamic Jurisprudence, in addition to puberty, the maturity is necessary in order to have capacity for carrying out transaction. The age of puberty is defined in jurisprudence; however, there is no specific age of maturity. Before the revolution in Iran , Article 1210 of the Civil Code determined the age of 18 as a criterion for maturity. After the Islamic Revolution, this provision changed under the pretext of conformity of the Civil Code with Islamic Jurisprudence. The text of this provision regards the age of puberty as maturity. However, according to note 2, when the maturity can be proved, it is possible to give him his properties. This conflict has led to debate and controversy. In this paper, the" maturity "is considered from jurisprudence perspective and it is concluded: First, the maturity is merely necessary for the possession of financial affairs. Second, there is no consistency between amendments made to Art 1210 and the view of majority in Islamic jurisprudence. Jurists do not accept the"puberty" as a presumption of maturity. Third ,the maturity is a common concept and it can be proved conventionally. For the purpose of proving it , there is no need for the decision of court.