محمدصادق طباطبایی

Due to the special form of contracting, contracting contracts have many complications for the real understanding of the basis and nature of legal works. Financing or finance is one of these things that have made it difficult for the government to exploit and develop oil fields in the current state of embargo.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Ethical Considerations: 

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

New contracts have been concluded in the phases of South Pars under the title of EPC+F with the condition of introduction of the investor by the EPC contractor, which has countless ambiguities. Including what aspects the contractor introduces the investor and what non-financial incentives this finance contract includes for the investor and the government as an employer and how is reimbursement, insurance, guarantee and bail.

In oil contracts, two methods of finance in the form of loans and mutual sales seem suitable, Although in the finance method, unlike the cross-selling method that leads to the introduction of technology and equipment, only emphasis is placed on receiving investment profits and not receiving guarantees and collateral other than the project, and repayment does not require the completion of the project, but in case of project failure, all risks It is addressed to the employer. Therefore, according to the goal of technology development and transfer, it seems that the use of cross-selling method meets the demands of the Iranian employer.

According to the civil code, the right of pre-emption does not prohibit the purchaser from performing any proprietary act on the purchased share. However, Article 816 of civil code, states that the exercise of this right void the transactions of the purchaser in respect of the subject of pre-emption. According to the fact that the correctness of the contract from the beginning and its nullity after exercising the pre-emption right is exceptional in our law, it is necessary to determine its interpretation and principle by investigating the juridical literature of the issue in order to answer the essential questions that may rise on this issue. First, what is the condition of the proprietary right of the purchaser before and after the exercise of the pre-emption based on? Is the nullity of the contract in Article 816 of civil code used in its real meaning? If the right of pre-emption on the subject of pre-emption belongs to shafi, why will this right not prevent the purchaser from doing the proprietary act on the subject of sale? There are several points of views from lowers and jurisconsult in this regard such as nullity, voidable, being observed, cancelation and non-opposability. But the bases of these views are not determined. In the present study, after analyzing and criticizing the present views, we concluded that the right of pre-emption on the subject of sale belongs to shafi, but the sale of it by the purchaser is valid. Because the transition of the subject of sale doesn’t defect the right of pre-emption and the exercise of the right of pre-emption will cancel the sale and this rule is more compatible with the two parties of the sale and the real correctness of the contract.

Most law scholars and well-known Islamic jurists consider that the fudhuli (unauthorized) regulations are of the the general rules of the agreements (contracts) and have generalized (spread) it to all types of the contracts. This broadness causes that some law scholars think that some fudhuli (unauthorized) rulings is in conflict with the public order. In contrast in the law of England as an excuse to maintain public order there are exceptions to the rule “the impossibility of transferring of title by the unauthorized person (a person has no ownership right)” and in some case the transfer of another person’s property is effective. Moreover, in the law of this country to facilitate the business affairs, the transaction of the agent acting without or outside his authority or the transaction of any person who pretends (claims) as an agent are effective. The disagreement between attitudes about efficiency of the legislation about the transfer of another person’s property originates from the difference of basics of “the transaction (sale) of another person’s property” in these two legal systems. In this paper with differentiating between the fudhuli (unauthorized) transactions of “mora’a” (meaning in the sale there is a right for the third person and the efficiency of the transaction relating to fulfil his right) and “moquf” (meaning ite efficiency relates to the consent of the true owner), it will be revealed that ineffectiveness of the recent transactions has been the theory “assigning the contract of sale to the true owner” and in the law of England the transaction of another person’s property is established in proportion to the ruling pursuant to the basics “agency resulting from ratification” and the Contract management (It’s a term which is used in the law of Iran and not explicitly in the law of England meaning: Contracting in situation that it does not conform to the accepted criteria (rules) by the legislature but the legislature for different social reasons is not going to announce its annulment).

In Islamic law and Civil Code, the contract of guarantee is considered a possessory contract due to the fact that it is based on the institution of religion and as a result of its possessory effect. However, paying attention to the customary instances of the contract of guarantee, a number of jurists have come to recognize another concept of the contract called customary guarantee with different nature and rules against the idiomatic guarantee. The contract of guarantee in this meaning only makes commitment without transferring the debt to the guarantor and its possession by the guaranteed one. The customary guarantee characterized by the lack of engagement of the guarantor, the lack of need to a fixed debt, the independent commitment of the guarantor is different from the idiomatic guarantee accepted by the Islamic law and the civil code. The present article uses a descriptive-analytical method to examine the customary guarantee as an instance of the general theory of commitments against the idiomatic guarantee which is based on the possession theory. As a result, it can be said that considering the needs of the society and identifying a new concept of the contract of guarantee in the Shi'a jurisprudence, as well as relying on the generalities of the law like the Article 10 of Civil Code, the customary guarantee can be considered valid in the case law too.

Most authors consider unauthorized transactions in the Iranian legal system as one of the general rules of contracts and have extended it to permissive and covenant contracts. This generalization (expansion) has led to rulings that are sometimes contrary to public order. For example, he obligates the principal to a contract whose obligor is unknown to him. On the other hand, it is not possible to identify covenant contracts that merely give rise to an imperative rule. In English law, the transaction of another person’s property may be made to the unauthorized person or the owner in the form of a covenant, which in the first case is exceptional and in the second case is in accordance with the rule. The complexities of Imami jurisprudence in separating the imperative rules from the status rules, as well as the fact that the jurisprudential reasoning system is more systematic than in British law, have caused the scope limitation of the possibility of concluding covenant contracts in a form of unauthorized contract in Iranian law. In this article, by comparatively examining the provisions of covenant contracts and the effects of unauthorized contracts in Imami jurisprudence, Iranian and British law, we come to the conclusion that concluding a covenant contract in Iranian law is not a general rule in contracts and it is possible only if the subject of the transaction or the subject of the obligation is the property of another and if the act was committed; is possible when to have financial effects.

The reason as to why the legal actions are indispensable is a fundamental challenge that is discussed in England’s law under the title of “the theory of contracts”. The primary question raised by this theory is that what issues cause the dispatch of mental issues from the ethical world into the realm of law? The crude answer to this question can be sought in the theory of “free will” and the creative power of will. The abovementioned challenge has also been posited in Iran’s law and Imamiah jurisprudence, especially for the fact that remaining loyal to some legal actions is necessary and the fulfilment of some others is permissible in both of the aforesaid systems. So, the present study looks for an answer to the question that “why the binding legal actions are legally considered indispensable?” Despite such a seminal answer as the governance of will, it seems that the necessity and permissibility of staying loyal to the legal actions are latent in the  Hidden  expediency of them. This Hidden expediency requires basing of the gratuitous legal actions on permissibility and basing of the exchangeable legal actions on necessity. This principle has been considered herein as the foundation of consideration theory and issues like ex gratia in England’s law and preliminary conditions in Imamiah jurisprudence and Iran’s law will be investigated in the light of the aforesaid theory.

Division that is one the ways of dissolution of legal partnership is separation of shares of each party in the joint property by compromise or court order. Among the ways of dissolution of legal partnership, division of the company’s property is very important, since there are many issues about it left unsaid in the civil code. One of these issues is the nature of division which is left vague and has led to different jurisprudential and legal ideas about it. Certainly offering a coherent theory and determining the legal nature of division has many results including entailing the consequences of the accepted nature and refusal of the consequences of other similar legal institutions. The present paper tries to clear the ambiguities and answer these questions that what is the nature of division of the properties of company? Whether it is a bilateral or unilateral contract? Whether rescission or defect option is possible if a defect occurs in division? To achieve the above mentioned aims, at first the jurisprudential and legal ideas are discussed and eventually the idea that conforms to the legal system is offered.

This research uses a descriptive-analytic method in order to identify, compare and analyze topical orientations of university textbooks in “Curriculum Studies” in Iran and other countries of the world. Using purposive sampling, 28 English books and 28 Persian books were selected from among all books published domestically and internationally with the title “curriculum studies” and “curriculum”. Data collection was accomplished by using a checklist derived from the topics of an Iranian encyclopedia of curriculum. The findings showed that in Persian books, there was more emphasis on traditional topics of curriculum studies, such as curriculum theories, curriculum planning with especial focus on content selection and organization, as well as formative and final evaluations, while the relevant English books have a more extensive topical distribution and deal with topics such as modern views and discourses, future curriculum challenges, technology-oriented curriculum, policy-making for curriculum, teacher education, curriculum for content fields, curriculum planning for various education levels, and introduction of the famous figures in this field.

Nowadays spiritual and mental restoration as well as the physical treatment is supposed to be one the important tasks of hospitals. This goal is achieved by employing expert physicians, making use of modern medical instruments, and establishing suitable physical space. However, lawyers pay less attention to the civil liability of hospitals. Common law considers civil liability of hospitals, theory of external delegation, and vicarious liability, but judicial precedent of the countries following common law tend to accept vicarious liability in cases of neglect in treatment. In Iranian law there is some doubt about projecting external delegations for physicians. Though it is rational (logical) to establish vicarious liability of hospitalsfor medical neglect.

In the light of remarkable advancement in medical science the use of medical treatment is increasingly using in order to overcome to the problem of infertility. One of the most popular of these medical treatments is the method of surrogacy. Surrogacy is an arrangement in which a woman carries and delivers a child for another couple. She may be the child''s genetic mother (the more traditional form of surrogacy) or she may carry the pregnancy to delivery after having an embryo with another female''s genetic transferred to her uterus. The intended parents may arrange a surrogate pregnancy because of female infertility or other medical issues which may make the pregnancy or delivery risky. The legal aspects surrounding surrogacy are very complex and mostly. The childes which were borne by the method of surrogacy have rights in the legal system. These rights involved financial rights such as allowance، heritance and non- financial rights such as training. The analysis of rights of childes which were born by surrogacy makes the legislature thin full about the legal aspects of surrogacy. The general aim of legislature should be the determination of legal status of these childes in order to prevent the future challenges which may produce through surrogacy. Since these childes like childes which were born by natural birth have civil rights. The analysis of their rights; from the date of pregnancy to the date of birth and even after birth is really necessary. This article concerns the rights of childes which were born by the method of surrogacy.

Article 289 of Iranian Civil Code provides that, “[D]ischarge (from an obligation) means that the creditor deliberately renounces his right.” In this definition, Iranian legislator does not explicitly refer to the nature of discharge. This raises the question whether the legislator, being aware of the confusion in jurisprudential texts, has cautiously left the issue to be determined in future. The purpose of the present article is to examine the concept and nature of discharge in Iranian law with an emphasis on jurisprudential foundations and eventually prove the unilateral-waiver nature of discharge. The approach of Egypt’s Civil Code and its commentators are meanwhile brought to attention.

Cosmetic and reconstructive Surgery is a newly- developed medical field that has no records in Islamic jurisprudence. Some contemporary scholars have been skeptical; about the religious legitimacy of this field. While, considering the principles of tolerance, it is an action within the framework of law. Additionally, it seems that the civil responsibility of medical practioners, in such situations, is their obligation to the results of the action, unless proved the opposite. In the Iranian subject law, there is no regulation foreseen regarding cosmetic surgery. However doctor civil responsibility toward this type of surgery can be inferred or deduced by considering general public principle. In this type of surgery, the obligation to provision of information as well as the necessity of taking moderate and fair actions in surgery are among doctors responsibilities. Moreover, in case of any injuries or harms, inflicted on the patient, as the result of surgery, there may be based on personal and typical criteria.

Human cloning is one of the issues which has been challenged in different areas such as theology, law, ethics and jurisprudence, and has also attracted the attention of contemporary scholars due to its relation with basic social and individual human affairs .Sunni scholars unanimously condemn human cloning and believe that it is an illegitimate act. Shi'a scholars, however, have different opinions about the act of cloning; their perspectives have been formulated in terms of four fatwas including: absolute permission, limited permission, primary ban and secondary ban. In this paper, human cloning is first briefly discussed from a scientific point of view and then withholding it from the point of view of Shiite clerics is evaluated.