mohammadhadi daraei

The "caveat emptor" rule, which has been introduced as one of the basic rules of contract law of traditional common law, does not hold the seller liable for defects in the goods or non-compliance with the terms of the contract, and holds the buyer responsible for inspecting the transaction. On the other hand, Islamic law considers the buyer to be entitled in such positions and gives him the option of defect or the option of incorrect description or the option of unfulfilled condition and the like.In recent decades, with the emergence of many problems in implementing the "caveat emptor" and considering the violation of buyers' rights if this rule is applied, we face the emergence of the opposite rule called the "Caveat venditor" rule, which seeks to amend the previous rule and the main area of emergence That is the rules governing consumer rights.In this article, while comparatively studying the institution of "caveat emptor" and similar Institution in Iranian law, we seek to explain the strengths of each of the two establishments and offer a correction proposal to correct the weaknesses of domestic law. However, in general, we will see that what has been achieved nowadays in the common law system, was explained concurrent with the formation of the independent legal system of Islam in the time of the Holy Prophet.

Bailment is one of the means of creating commitment in the common law that has been accepted by the judiciary. The limits of the bailment obligations and effects are disputed by the common law jurists, but there is agreement in some aspects. If we compare this institution with the institutions of Iranian law, perhaps the most similar one to it is the institution of Yade Amani, although there is no exact equivalent for it, especially since the criticism of the institution of Bilment in common law and its rejection by some jurists has been added to its ambiguity and some of them believe in the limited circle of examples of this institution. In a comparative study of the effects and obligations arising from the bailment, it is necessary to compare the examples of this institution with Iranian law. Because this institution does not have a specific equivalent in Iranian law and is relatively consistent with the broad theory of Yade Amani, but the examples of these two institutions are not the same, so it is necessary in addition to the general matching of the two institutions, partial comparison in the examples.

The Bailment institution originates from the common law system, which has a disagreement over its position, scope, rules and effects. bailment in Iranian law is equivalent to a deposit, bail, delivery, guarantee, and trustee translation that is not exact. It seems that Iranchr('39')s closest legal entity to the baiment is "yade Amani". There are several categories of this institution, of which the most important one can be, the classification of the baiment on the basis of responsibility and the degree of the fate of Bailee (goods possessor). Enterprise transport operations of instances of bailment operations and has played a key role in the classification. Obviously, the purpose of the research is to identify the less-known concept of the bailment and, consequently, the effect of this institution on Iranian law and maritime transportation. Therefore, in the present study, while comparative study bailment in the UK and the US with the rights of Iranchr('39')s rights and position of the bailment concept, in marine cargo as well as take a look at featured.

Endowment under Islamic law is a permanent type of contract which cannot be revoked and it is a consensus among Shiite jurisprudents. It is a kind of contract which has been based upon a religious thoughts as well as provides great heavenly reward and includes social and economic effects. These are special characters which lead Endowment to be a more concrete contract with special imperative rules. But, a survey regarding jurisprudent books shows that, some of them sometimes let Endowment to be revocable by special stipulations in the contract, which is against the consensus on irrevocability of an Endowment. Although most of the Shiite jurisprudents accepted these stipulations, but some others are against them. In this article arguments relevant to both ideas are considered. These stipulations are not accepted under the civil law of Iran and it can be deducted from it that Endowment cannot be revoked and are bounded from the time of contract.

Bailment, as a special legal concept in common law, has many controversies over its place, boundary, rule and effects. it has some resemblance to “Yade amani” (Custodial possession) in Islamic law. Most of these similarities are in their items but there are lots of differences in effects. But unfortunately it translated in Persian-English Dictionaries mistakenly as deposit contract or other concepts. This mistake translation could drive to other big errors in legal concepts. So working on this issue needs concentration on concepts, rules, effects and objects.
In common law, bailment sphere is becoming to some extent that arouse criticism of some Common law jurists. Consequence of this extensiveness is ambiguity in coverage. But common law courts accepted it and consider it as a source of obligation besides contract and tort.
In Islamic law, “Yade amani” is not a source of obligation but is a description for possession of possessor which sometimes neglectfully becomes description for contract

The new Islamic Penal Code of 1392, on the one hand delimitate the liability of physicians, but on the other hand, it contains new provisions for protecting patients.The new Code sets aside liability based on the theory of lack of fault of physicians, which is the common word of Imamiyeh jurists and was adopted in the 1370 Code. Instead, the new Code adopts the theory of presumed liability. In addition, to give more protection to physicians, obtaining patient`s consent exempts physicians from liability. Moreover, the new Code indicates that if patient or nurse is aware of the error of medical order, physicians have no liability. A further change is the affirmation of bona fide as a means of discharge of civil liability. As it was stated, the new Code has provisions in order to protect patients. Also, it gradate physicians and make them updated in accordance with the latest developments of medical sciences. Hence, it is provided that any scientific or practical fault or default(neglect) of physician, make him liable. This means that the ignorance of medical science and new methods of treatments is regarded as a cause of civil liability. It seems that this regulation is the turning point in the Panel Code to protect the patients, although this evolution should have been clearer.

“Pacta sunt servanda” is one of the most fundamental principles in the common law and Iranian legal systems, which have been exposed to exceptions in the process of time. These exceptions are part of general doctrine of frustration. Iranians exceptions to this rule are named as “Ta`azzor” and “Ta`assor” rules. Doctrine of Frustration in Common law includes three subdivision theories: “impossibility of performance”, “frustration of purpose” and “impracticability” (hardship. All of these theories applied where a supervening event occurs. In English courts, only first two theories are accepted but third one is applicable in American courts. In imamieh Jurisprudence and Iranian law, “Ta`azzor” rule in most aspects is similar to Impossibility and “Ta`assor” rule is somehow like Impracticability. Some Iranian lawyers are said that we have no rule like “Frustration of Purpose” but I believe we can find traces of this theory in Imamieh jurisprudence and according which it is part of “Ta`azzor” rule.

Offer is created by offeror`s intention. There are three opinions about the revocation of offer. The First one is that the offer is always revocable and any agreement as to the contrary is void. The supporters of this opinion are divided into two groups. Some jurisprudent and lawyers believe that offeror who revoke of offer is doing his right and have no duty to compensate. But another group believes that the revocation of offer is a kind of tort and offeror is responsible. The second one is that، revocation is not possible. Among Shiite jurisprudent، Tabatabaei Yazdi (writer of Orvah) accepted this opinion accordint to four sources of Imamie but rejected it because it is against what accepted by all Shiite jurisprudent (common belief)، i. e. revocation is always free at any time for oferror. I believe this opinion (offer is not revocable) can be accepted in Shiite jurisprudence and is not rejected by all Shiite jurisprudent. The third opinion is that the offeror can revoke its offer but in some conditions، it is not possible for him to revoke it. For example، when it indicates، whether by stating a fixed time for acceptance or otherwise، that it is irrevocable، or if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. CISG accepted this idea. All these three opinions، based on their own philosophy. The 2nd opinion which is accepted in this article is based on Unilateral Obligation Theory. This theory is accepted by some great jurisprudent and I focused on this theory to stablish the idea of irrevocability of offer.