فهرست مطالب gholamali seifi zeinab

Understanding suspended contracts and determining their place in Iranian jurisprudence and explaining their nature in various forms are challenging issues in the Iranian legal system. However, the existence of different thoughts and ideas regarding the validity or invalidity of suspended contracts has created doubts about their effectiveness. Some Islamic jurists consider suspension in contracts to be invalid, arguing on the basis of rational and textual arguments, the lack of establishment of enforceability, and the incompatibility with the certainty of contracts. This is because the purpose of the contracting parties in establishing contracts is to create obligations and realize the effects of the contract. It seems that with the acceptance of suspension in inception and its attachment to enforceable contracts, the justification of suspended contracts in Iranian law is possible within the framework of suspensive conditions. In this regard, those who believe in the validity of suspension, using a descriptive-analytical method and referring to examples of suspended contracts in jurisprudence and law, argue on the basis of the necessity and rationality of developing and benefiting from suspended contracts and avoiding incorrect jurisprudential insights (non-acceptance of suspended contracts) believe that it is necessary to consider the conclusion of contracts in a suspended manner in Iranian law. The conclusion is that, by analyzing and utilitarianism of suspension in contracts, and also by criticizing the identification of the logic of jurisprudence and law in legalism with a new approach to civil sociology (drafting laws that are in the best interests of society) and turning away from the misconception of the inadmissibility of using analogy in jurisprudential interpretation to explain suspension in contracts on the basis of rationality, and avoiding formalism and the independence of the system of thought of jurists is necessary.

Despite of acceptance of possibility of set-off by most legal systems, There are various approaches in expressing the concept of coercive set-off, it’s grounds, realm and effects. Some approaches such as rational set-off, canonic set-off and voluntary set-off in Islamic jurisprudence and automatic set-off, legal set-off and declaratory set-off in civil law system has used which as an substantive rules causes to extinction of two mutual debts and the extinction of both of them. On the contrary, in English legal system, except in exceptional cases, set-off is a procedural rule that, if invoked by defendant and accepted, it merely results in the order to stay the main action by court in the amount of counterclaim and not necessarily occurring of substantive set-off and extinction of two mutual debts. Traces of such an approach are seen by some Sunni jurists and similar institutions as the lien in Islamic jurisprudence. Article 295 of Iranian Civil Code, raised the phrase"Ghahri set-off", on some insights in Islamic jurisprudence and civil law system without explicitly defining it’s meaning. The earliest commentators of civil law, interpreted that phrase as rational set-off and automatic set-off, Although the French legislator had replaced the legal set-off in the 1804 Civil Code, which required the defendant to plead in court, in the 2016 reforms, she again turned to automatic set-off. Careful attention to narrative documents of jurisprudential and thinking on the terms used in civil law brings it closer to the concept of voluntary set-off in jurisprudence and legal set-off and declaratory set-off in civil law.

In legal works and writings, there are two theories with different effects on the basis of insurer liability in the Compulsory Insurance Law of 2016; The first is the theory that interprets the basis of the insurer's liability on the basis of the insurance contract and its subordinate liability;

Driverless cars have made the jump from fantasy to the physical realm and their use is increasing. In their most advanced form, a driving system is replaced with a human driver which takes controle of the vehicle when driving. Regardless of the conventional issues of civil liability, what draws attention in the first place is the mechanism of compensation for accidents caused by these driverless vehicles. Therefore, the main question that we seek to answer in this article is whether the compensation system for traffic accidents that currently prevails in Iran can be responsible for the widespread use of these vehicles assuming that liability of insurers as social cooperation one? Relying on the descriptive-analytical method of research and use of library resources, this article has reached the conclusion that the compensation system outlined in the Compulsory Insurance Law of 2016 which is based on social cooperation can handle this important issue, although it needs to be developed.

This article, which was conducted in a descriptive-analytical method using relevant sources, deals with the different consequences of the contractual liability system and the implementation of the collective compensation system as realized in the compulsory insurance law of 2015. Relying on the divided views on the liability arising out of unusual vehicles, the article emphasizes that contractual liability has been set aside by the legislator in such cases and the law was founded on social cooperation in order to protect injured parties through equality in compensation of damages. According to this view, the injured party’s right to compensation from the collective resources is different from claiming the damages as a debt from the cause of damage’s properties. 2- The majority of scholars believe that having defined the usual vehicle and using the half of blood money of a Muslim man as a criterion for his definition, the legislator limited the liability of cause of damage and insurer to half of the blood money. They considered such a limitation as a revocation of general rules of liability and an exception to the principle of full compensation of damages. However, having set aside the liability of the cause of the accident and eliminating insurance principles and rules, the law of compulsory insurance has established a semi-administrative system that pays damages equally in case of involvement of a vehicle in the accident and without attention to the fault of the cause of the accident, the necessity of establishing causation, religion and gender of the injured party, and financial capability of the injured parties (i.e. the owner of unusually expensive vehicles). The criterion for compensating losses incurred by the owner of unusually expensive vehicles is the definition of usual vehicles and matching the damages incurred by both usual and unusually expensive vehicles. The unusually expensive vehicle owners’ right to receive compensation from collective resources are equal to that of the owners of usual vehicles and the additional loss could be claimed under general rules of liability. There is no difference between usually, and unusually, expensive vehicles in this regard as the ultimate aim of compensating for damage is to protect injured parties, not the vehicles, or to cover civil liability arising out of vehicles. The definition of usual vehicles and matching compensable losses is a mean for receiving compensation from collective resources of compensation in case of mere involvement of a vehicle in an accident which entitles the injured party to receive such compensation and due to the fact that it has nexus to public order no one could be deprived of such a right. 3- The social cooperation system is a separate system. In such a system insurer is not the owner of the resources of the social cooperation system of the owners of vehicles. In fact, when receiving and paying, and recovering the resources insurance companies act as agents which is different from insurance activities that are commercial in nature. Recovering of damages for personal injuries is set out as a factor for prevention not punitive damage for traffic violations leading to the accident and is an exception to the principle of a fiduciary relationship in the law of compulsory insurance that is not set out in case of property damages. 4- The law contains words and phrases which denote the contractual insurance of liability. However, under both collective systems of compensation for damages and social cooperation, elements of both can be seen through the compulsory insurance law, the injured party’s right to receive compensation for collective resources should be considered an independent and not a right to the property of the cause of accident and insurer. The structure of the social cooperation system that is reflected in the compulsory insurance law in an implied manner requires that the insurer must pay the losses incurred by the injured party regardless of the civil liability and insurance system and the aim of establishing this system is the equality of the injured parties in receiving damages from collective resources without eliminating the civil liability of the cause of the accident or taking into account of any social, economic, religious or gender differences between the injured party and the cause of the accident. Under Article 2 (note 2) of the compulsory insurance law receipt of compensation from collective resources does not deprive the injured party of its right to resort to the cause of action and in the case of involvement of different insurance companies, the insurer of the vehicle causing the accident is liable for payment of damages to the injured parties. Accordingly, it could not be concluded that liability of the cause of the accident and the insurer is limited to half of the full blood money. 5- In the collective compensation system, the insurer has no title to resources of social cooperation provided by owners of vehicles and the insurer is an agent of such a system. Losses to expensive vehicles are more than the losses to non-expensive vehicles. Accordingly, the legislator has defined the usual vehicles in order to determine damage incurred by parts of expensive vehicles by matching them with identical parts of usual vehicles and to pay compensation to all the victims in an equal manner, regardless of the type of their car. In fact, matching damage and defining usual vehicles, the criterion of which is half of the blood money of a Muslim man is a means for equal allocation of collective resources to injured parties in order to impede the owner of expensive vehicles from receipt of the collective resources more than that is received by the owner of usual vehicles.

Unlike the legal system that considers the transfer of debt to be absolutely independent of of influence of cause and even if it proves to be null or void, it has been recognized in accordance with the general rules of Islamic jurisprudence and civil law. Also, it is considered to be one of the pillars of any legal action, and such a transfer is, as a matter of fact, absolutely influenced by the original relationship. In the relationship between the hands entered in negotiable instrument, there is an important deviation, from the general mentioned rule, and that is when the negotiable instrument is circulated after its signature and submission to the first  holder by indorsment, there is not heared the objections of  invalidation or inexistence of original relationship by previous hands. This concept of negotiable instruments  law have been called not Paying Attention to the Objections in Patent Rights. Because of the appearance of a clear conflict with established jurisprudential rules and traditional laws and invalidity as the origin of the right, it is unacceptable for a person bound by jurisprudential principles but in order to consider institutions  in which the lawmaker has appointed persons to be trustworthy to appearance or merely because they have genuine confidence in the emergence of the rightful owner, on the one hand, and the precision of the jurisprudential institutions that make individuals responsible for the caused damages on the other, it obliges them to e indicate that the mentioned principle is jurisprudentially justifiable.

Set-off between two mutal debts- that adopted in civil law system, and after the long ups and downs became as a substantive matter, accepted only as a procedural principle in English law too late between two debts caused by contract that contain a sum of money to prevent circuity of claims and it is a counter claim about a liquidated or sometimes unliqiudated sum of money which it time comes to execute and as a principle it only leads to stay of execution of plaintiff's claim. However, the existence of three legal sources of common law, equity and statute in mentioned legal system, led to formation of three distinct types of set-off that each of them is aplicable in it's own certain jurisdiction. These three types of Set-off which has not equivalents in civil law system and are recognized according to forms of relationship between two debts, can be nominated as integrated set-off, independet set-off and connected set-off. In Iranian law, although set-off causes to discharging of two debtors about a liquidated amount of mutal debts that it cames to execute, and extinguishes two debts, the existence of lien and nesessity of invoking in litigation, it bring closer the existent solution in Iranian law to solutions of English law. In this study it will been studied the approach of two mentioned legal systems about the basics of set-off, techniques and it,s differrent usages.

Role of negligence in establishing the causal relationship is not limited to cases of indirect damages (causation), but in cases where several direct factors have played a role in the negligence, the factor, to which the damage is attributable, can be determined by negligence. Developments resulting from the adoption of the law on compulsory insurance for damages to third parties due to accidents caused by vehicles adopted in 1395 and the Islamic Penal Code adopted in 1392 and providing various criteria in the distribution of liability, the fundamental question arises as to the place of fault in distribution of liability in these cases. Comparing the answer to this question with the answer to the same question in the British legal system will lead to a comparison of Iran's legislative and judicial policy with the United Kingdom. Analysis of the relevant laws and regulations in both countries indicates that in cases where pedestrian action cut the causal link, driver liability would not arise but where both have a significant role in causing the accident, they will be equally responsible, and in cases where the driver is at fault and the pedestrian is not at fault, the driver will be responsible.

Collateral contracts which are concluded to guarantee and facilitate the collection of debts, as subordinate contracts, are always based on a basic relationship and debt. The Conclusion of the collateral contracts, including transition and guaranteed collateral contract, about a debt that has been fully formed and proven to be on the debtor's obligation, undoubtedly is correct and valid. About the debts which are not substantially constant on the debtor's obligation and not the cause of them has also been created, due to the fact that the collateral contracts have been subordinate, they should be ruled out that they are inaccurate. However, there are doubts about the basic debt that is not proven on the debtor's obligation; but its cause has been created. About some examples of this category, the legislator has explicitly stated that the existence of the cause of debt is adequate for conclusion of contract; but he has taken a silent position about others. This has led to a controversy among the authors. In this article, we will examine this issue from jurisprudence and legal perspective in order to clarify the necessity of being the debt on the debtor's obligation or adequacy of the existence of the cause of debt for concluding the collateral contracts.

Suspension as one of the issues related to the contracts is accepted in the current legal system And even can consider the validity of suspended contracts in accordance with the rule and mention to the rules under the title of "suspendable rule of contracts". However, doubts have been raised by jurists and lawyers about the fact that collateral contracts as one of the types of known contracts in the current legal system are suspendable or not. Some scholars argue that there is no way to suspend a collateral contracts and they have cited reasons for justifying their opinion. In contrast, others believe that suspension, like other contracts, also applies to this category of contracts. Because the basic rule is that contracts can be suspended and the view that the suspension of the collateral is not correct is contrary to the principle, in this paper, the author's attempt will be to consider the reasons given by the opposition to suspend the permission of the collateral contract and examine them with an analytical view to determine their accuracy.

The parties to the contract must have good faith in their all statements and also avoid the silence which leads to the misrepresentation of the other party. What the insured asserts must be effective on the premium and the insurance subject. Informing the insurer must be done with complete and accurate answers to the questions mentioned in the insurance proposal.The Insured can not insure all potential risks that threaten the subject of contract. In this case, there are some exceptions like deliberate loss. Insurer must have good faith in arranging the proposal and contract and avoid deceiving the insured by limited and ambiguous proposal. In the situations that insurer knows the bad faith and non accuracy of the assertions and expressions of the insured party, can not invoke to this bad faith in the court. In the time of concluding the contract, that is possible that the insured party intends to insure his or her properties with a higher value than real (deliberately or unintentionally), if this misrepresentation is done in a deliberate situation, then the contract is void and if these false statements are expressed unintentional, the contract is not void, so it is valid. The insured obliges to inform the insurer in the case of risk intensification or changing the insurance subject's situation. But unfortunately in Iranian law, there is no remark about informing the insured in the case of risk mitigation, which has benefit for the Insured.