محمد خاک باز

Commutative Justice A suitable dress for the old body of civil law Abstract : Balancing the rights and obligations of the parties in contracts and exchange payments is one of the necessary tools in the interpretation of definite lawa and contracts . The aforementioned definition and the traditional criteria related to it cannot balance people’s rights and the commercial necessities in the modern world; thus, from a more practical perspective, commutative justice theory means the necessity of balancing the parties’ rights in bilateral contracts and its enforcement guarantee is compensation with the help of other valid legal principles. This theory in Iranian law, although not backed by explicit legal provisions, may be justified as an acceptable theory using analytical and jurisprudential reasons like “Waste of the Object of Sale before its Receipt” and legal options . Accepting this theory in business world today shall require toshare the idea taqydh no reason to obey the law and traditional rules . Based on the justice of the exchange, the seller faces the buyer who has not paid the full price; He can refuse to sign the official transfer document in order to enforce the lien .

From one point of view¸ sciences are divided in to two categories : 1- sciences that are sacred in themselves and brung man to perfection like the Quran¸ Ethics and Etc 2- sciences that arent sacred in themselves but it is valuable if it serves humanity. law and medicine are in the second category.The art of the lawyer is that interpret and execute the words and materials of the law in such a way that justice be done not that the implementation of the law itself will destroy justice .
During the rule of no harm, the Prophet of Islam (PBUH) interpreted and performed the hadith of domination in such a way that any misuse of the words of this hadith was denied by Samra Ibn Jundab And made it clear to law students that they were not confined to the terms of the law. The interpretation of the law towards justice has always been emphasized by the elders of law, provided that it must be within the framework of correct legal principles. The author of the article has done a lot of research on this view for many years. In the books of practical treatise on penalty clause, the three-volume course of commutative justice and the rule of balance and other writings Details, conditions and effects of the theory according to which Instead of paying attention to and enforcing the law, pay more attention to the spirit and purpose of law and justice And along with that, we have brought jurisprudential, legal and judicial documents.

Undoubtedly, one of the most important concerns in lodging a petition and initiating a lawsuit is the scope of hearing within the limitations of the petition. Legitimacy, nature of rule and its limits seem to be important in order to clarify based on what criteria the scope of hearing is determined or limited or forbidden. The scope of hearing within the limitations of the petition can be inferred from the spirit and letter of Civil Procedure and some jurisprudential guidelines. The findings show that observance of this imperative procedural rule is a must in all hearing stages and is subject to sanction. There are some exceptions to the subject of the scope of hearing within the limitations of the petition but, these exceptions must be interpreted restrictively in favor of observance of this rule and other legal principles and rules including the principle of Impartiality of Judges. The present descriptive-analytical research examines this rule and the limitations of the court’s authority to add parts to or omit parts of the petition and the lawsuit on the basis of legal principles and jurisprudential guidelines and also it aims to provide some suggestions in this regard.

Commutative justice, in the philosophy of law, means giving the exact amount of everybody’s rights and achieves without interference, and distributive justice is concerned to distribution of property by state. Commutative justice theory, from a more practical perspective, means the necessity of balancing the parties’ rights in bilateral contracts and if it is blemished, it should be compensated by other legal principles. In Iran’s law, this theory is justified by arguments like rule of “waste of the object of sale before its receipt” and legal options. Whereas this theory is rejected, balancing the parties’ rights in bilateral contract will be broken.