فهرست مطالب مراد مقصودی

Fairness in law is the full and complete granting the right for every rightful and lacking any shortcoming and weakness in granting of individual rights. In Islam, however, the importance of justice in law has been emphasized and the purpose of sending divine prophets has been introduced as performing of justice. In other words, the justice is the spirit of Islamic law. So our question in this article is, can the principle of fairness be invoked in the performance warranties for breach of contract? Our hypothesis, which can be concluded as the general conclusion of this article, is that the acceptance of the rule of justice as a documentary and source of judgment in the performance warranties for breach of contract, although it is accepted in some international law and arbitrations, but in Iranian law, the rule of justice cannot be cited as a source of judgment, although this rule can be applied to the interpretation and application of the provisions of the law to the circumstances of the litigation.

The mortgaged property will be handed to the mortgager after seizure. Consequently, the mortgager may do transmissions on this property that result in its transfer. Does the owner have the right to do such occupations on the mortgaged property or not? If the answer is negative then what will enforce the prohibition? Invalidity or Lack of Influence? If the answer is positive, then, is the application of this right absolute or it is bounded to the rights of the mortgager? The answer to these questions lies in the dimension of the mortgager possession to the mortgaged property. The Iranian legislator declares the scope of this possession in the Articles 793 and 794 of the Civil Code. However, the Civil Code does not propose a clear scale for the issue. Article 793 suggests “loss” as the only legal obstacle to the mortgager to do so. At the meantime, Article 794 states that the “benefit” in the mortgage is an essential factor for the possession. Therefore, apparent contradiction between these two Articles and lack of a uniform scale in interpreting the terms of “loss” and “benefit” in the mentioned Articles, raise various and
contradictory opinions among the judges of the courts and legal scholars. The present paper tries to find answers to the questions and to clarify the ambiguities of the era.