mojtaba zahedian

A theory known as “ʾistighlāl” or Misuse of Faulty Intent is mentioned in contemporary legal texts of Arab countries, under the topic of contract elements and within the discussion of defects in consent. In these texts, the examples of defects of will include ignorance (jahl), mistake (ghalaṭ), fraud (tadlīs), coercion (ʾikrāh), and misuse of faulty intent (ʾistighlāl). Misuse of faulty intent in the context of transactions refers to a situation where an individual’s will is compromised to the point that the other party exploits it, whether this weakness has internal roots, such as a father’s authority over a child, or a husband’s over his wife, or an employer’s over a worker; or material roots, such as financial need. In any case, this faltering or defect in will throws the contract out of balance and equity, and based on this issue, no proportionality would remain between the responsibilities of the stronger and the weaker party. In Arabic countries the Law has provided particular measures for misuse of faulty intent, but in jurisprudence and therefore in our legal system the absence of such an institute can be felt, although similar concepts exist within the current system. In doing so, it seems possible to draw on specific justifications, such as bayʿ-i najash, talaqqī rukbān, and bayʿ-i ʾistirsāl. It is also possible to draw on general principles such as the principles of justice, fairness, and the principle of prohibition of exploitation (ʾijḥāf) to establish this institution in our jurisprudence and law.

In recent decades, several new terms have been increasingly used in the laws and rules of Arab countries, all of which somehow indicate the unfairness of the contract (either in the nature of the contract or in the terms of the contract). One of these terms is “unfair condition.” The most important feature of unfair (taʻasufī) conditions is the exploitation and abuse of the external or internal weakness of the weak party. Iranian law has addressed the imposed or unfair conditions with delay and in a more limited way. Unfair condition is not mentioned in any jurisprudential sources, but it is possible to analyze it based on jurisprudential sources. There are two possibilities in refutation and the need to adjust the unfair terms: the correctness and refutation approach. Contractual freedom and the validity of contracts, the principle of validity and the non-inclusion of an unfair condition among refutation conditions are the evidence of the first possibility. Entering into the conditions contrary to the Holy Qurʼān and the Sunnah, the principle of justice and fairness, the prohibition of disorder in the system, the forbidding the uncertain (gharar), the forbidding of consuming property wrongfully, and the unity of the criteria with similar subjects such as al-Bayʻ ʻalā al-Bayʻ, al-Sawm ʻalā al-Sawm, Najsh and Talaqqā al-Rukbān are evidence of the second possibility. In case of refutation of an unfair terms, it is possible to dictate the possibility of termination or modification of the contract in favour of the weaker party.

The law of contracts is an important part of any legal system. A major challenge in this regard is how sanctions are determined in the event of the breach of a contract. Consistent with a set of pre-determined goals, all legal systems have made certain rules for the breach of contractual obligations. In the law of the United States, a strict liability system governs in terms of preservation of a contract as well as compensations for the damages of a contract breach. Nevertheless, drawing on the different aspects of the consequences of this liability, researchers have developed new perspectives on the fault-based enforcement of liability in recent decades. The Iranian Law, rooted in the Islamic jurisprudence (the Fiqh), limits the claim for contractual damages circumstantially to the affirmation of parties, customary law, or civil laws due to the differing opinions of Islamic jurists (the Foqahā) on the issue. Following the aims of the laws of civil liability in fully compensating for the damages incurred to contract parties, the loss can be estimated according to its attributability to the offending obligator. Use was made of the descriptive, analytical, and comparative methods in carrying out the present study.

Clause22,Article1of the Securities Market Law of the Islamic Republic of Iran,approved in2014,defines the parent company asacompany that, byinvesting in an investable company in order to gain profit,acquires so many voting rights that it elects a board of directors to control the company's operations.or be effective in the selection of board members.This definition seems to bethecorrect distinction between parent companies with similar companies(investment company,holdingcompany)and similar titles(combinationofcompanies,joint venture and trust) and determining a specific position for subsidiaries with a similar company(affiliated company)And similar titles(branch and agency)are not given in financial and commercial laws.The specialized parent companyandholdings have similarities with subsidiaries and similar titles, but they are not the same.There are many differences and distinctions between these titles, which have many effects on these differences. In the upcoming article,we will compare specialized parent companies and subsidiaries with other companies and similar titles in Iranian and American law.The research method is descriptive and analytical, and the library method was used to collect the sources.The results of this study show that due to the lack of comprehensive and technical laws and regulations in the field of specialized parent companies and holding companies,the terms holding company and subsidiary company are used equally with similar companies and titles, while Each type has its own regulations and from the legal point of view, the structure of these companies is different and distinct from each other.Also, state-owned specialized parent companies can be considered as a special type of holdings,whose position has not been properlyexplained in Iran's administrative law system.

In recent decades, arbitration has emerged as an effective method for the peaceful settlement of international disputes. However, the dominance of national courts over the arbitration process, as well as its rulings, remains strong. Recognition of the right to challenge the arbitrator's award in international instruments such as the ICSID Arbitration Convention and the International Commercial Arbitration Law in the Iranian legal system is the most important manifestation of national courts' oversight of the arbitration process; However, support for the arbitration process requires that the grounds for objection be as minimal as possible. Explaining Evaluating the effects on them seems inevitable. The descriptive-analytical study of this issue confirms that the non-substantial intervention of the national courts as well as the non-extraterritorial implementation of the annulled arbitral award are the most important effects on the objection to foreign and international arbitral awards. Regarding the aspects (cases) of annulment of foreign and international arbitrations, it should be said that the development of these aspects in the Iranian legal system - which is reflected in the cases of annulment and invalidity of the award in the International Commercial Arbitration Law - is a serious threat to development. Optimal arbitration and its institutionalization in the field of social, economic and international relations, which requires the determination of the country's legislator to make reforms in this legal establishment.

A holding company is a company that controls the activities of other companies by owning shares. Holding can also be considered as a controlling company whose main activity is buying shares of one or more other companies with the aim of managing said companies. The companies whose control is in the hands of the holding company are called subsidiaries or subsidiary companies, creating a relationship of subordination and dependence between two companies, which is often done with the aim of obtaining maximum profit, can lead to abuse in some cases.

This research is of a theoretical type and the research method is descriptive-analytical and the method of collecting information is library-based and by referring to documents, books and articles.

Ethical Considerations: 

In this research, the principles of trustworthiness, honesty, neutrality and originality of the work have been respected.

Research shows that each state in America has its own basic guidelines regarding companies and they are different from each other; At the same time, federal law has specified minimum trading standards, most of which are found in the Securities Act of 1933.

It seems that this definition does not make a proper distinction between holding and investment companies and determine a specific position for subsidiaries, affiliates and related companies in financial and commercial laws. Due to the lack of comprehensive and technical laws and regulations in the field of holding companies, the terms holding company and investment company are used equally, while each type should have its own regulations, the public opinion is that the holding company, is an investment company, while from the legal point of view, the structure of these two companies is different and distinct from each other.

Does the violation of the Joint Comprehensive Plan of Action (JCPOA) because of withdrawing or claiming of violation and subsequently to implement sanctions again cause to the exemption or suspension of oil industry in upstream area? It is a disputable subject that if the exercising of sanctions are instances of force majeure or it is counted of the difficulty of practicing the agreement. The main provision for occurring the force majeure is to be the happening foreseeable and to be uncontrollable. Pursuant to the content of the paragraph 14 and 15 of 2231 resolution of the UN Security Council, the applied sanction is effective to the contracts signed after the date of sanction. The occurrence of sanction cannot merely result the happening of force majeure because if the sanction is predictable, it cannot be of the instances of the force majeure. In this circumstance it can be said that the sanction can be considered of instances of the difficulty of the implementation of the agreement. In Articles 227 and 229 frustrations of contract has been mentioned and in the law of Iran it is accepted. But what has been stated under Articles 227 and 229 merely observing frustration of contract (refers to a particular way in which contractual obligations can be discharged) subsequently it will be the material damage of the subject of responsibility which the force majeure makes it occur which in the oil contract the material damage has not happened because this kind of the oil contracts is ongoing. For this reason in the recent amendment (the regulations observing the conclusion and performance of oil agreements) it has been explicitly stated that it should be observed the paragraphs 14 and 15 of 2231 resolution in the situation of drawing up agreement (contract) this subject indicates that it is not any more considered as one of instances of force majeure in the upstream oil agreements .Therefore, it is necessary to observe sanction as of instances of difficulty to perform the agreements that it leads to regulate the agreement.

The legal institution of “debt buying” in the Iranian law system is officially recognized by article 98 of the “fifth program for development law”. This institution with a long jurisprudential precedence is the subject of disagreements in Imamiah jurisprudence. There are serious disagreements about the nature and the legal status of the institution among the Imamiah jurists. These disagreements have led to some doubts about it, and the way of its application is still the subject of controversies. Knowing the consequences of the contract and interpretation of the legal relation between the parties are depending on the accurate legal description and true understanding of its legal status. As to the nature of this legal institution it can be said that it was known as “sale”, but after enacting of the “fifth program for development law” it is described as a definite contract with its special rules and results, although analytically it is still a sale. As to the legal status of the institution after analyzing the different jurisprudential ideas we concluded that the idea of absolute validity of the contract of buying of debt has been the basis of accepting it as a new monetary tool in the banking system by the lawmaker.

In the present study, an attempt has been made to gain insight into the status of law in relation to agency costs using an analytical-descriptive method. The issue of agency costs and the urge to present regulations for the agents involved in the commercial ties between companies have been always of research value for lawyers. Such costs, if appropriate measures not taken, can create formidable barriers to the potential interests of stakeholders which eventually puts businesses and investments at jeopardy and may lead to the loss of opportunities to attract dispersed capital of the community. Since the interests of the stakeholders are based on the actions of the agents, it is possible for them to abuse their position, which would be in conflict with the fundamental purpose of the companies. Accordingly, high agency costs can generally place undue burden on the stakeholders of companies, leading to unproductivity of their institutions.
The concept of agency costs was first introduced by economists, and for this matter, the realization of such costs in its very economic essence is beyond the scope of law. A number factors took agency costs into consideration such as asymmetric information phenomenon among corporate activists, opportunist measures, lack of competitive market, and the conflict between stakeholders and agents, to mention but a few.
In normative sense, one of the main functions of any legal system is to create efficiency, or in other words, maximizing wealth in society. Thus, the science of law, by providing various solutions, including ex-ante and ex-post approaches, has used all the capacities defined in the legal system of exploitation and legal rules in order to manage the agency costs.
Categorizing legal solutions into the dichotomy of regulatory and governance solutions is due to the differences existing between business and corporate activists. Considering the significant costs for establishing collaboration among stakeholders, implementing governance strategies by stakeholders in monitoring the agents has not been met with much success.
Therefore, the legislator attempts to lower the agency costs by prescribing regulatory strategies. Because in such situations, regulatory strategies, which have mandatory character, have proven to work more efficiently thanks to their restricting role, and by doing so, the interests of the stakeholders will be respected.
By assigning stakeholders in charge of electing and dismissing the managers as a regulatory tool, in the one hand, it is possible to avoid such costs by choosing the competent agents; and in the other hand, when the agency cost is imposed on the stakeholders due to the measures taken by agents, they can prevent the costs by resorting to the right to dismiss them.
Finally, by acknowledging the right to approve the decisions of the company by the shareholders, another regulatory card will be given to the stakeholders, based upon which a revision of the company constitution will be solely possible on the condition of reaching a consensus by the majority of the stakeholders.
Moreover, setting a minimum legal capital or a prohibition on the distribution of profits among shareholders is because of the fact that the legislator prioritizes the rights of creditors to reduce the agency. In fact, the goal of enforcing warranties against self-dealing transactions and limiting the granting of loans and credits to the agents of the company, is to support shareholders against agents.
Also by defining the requirements regarding the disclosure of information by businesses, the legislator's goal is to prevent the costs. Subsequently, shareholders, even minor shareholders, can be exempted from these costs by using the right to transfer shares or the right to evaluate and resell their shares and leave the company. On the other hand, the rights of the creditors and the parties transacting with the company will be protected with any assumptive change in any case. So if these changes are risky for the creditors of the company, the right to demand their claims before the due time is recognized. Also, in case of merging companies, all the commitments and contracts will be transferred to the newly-merged company, and these companies will be required to fulfill their contractual obligations.

Human community progress, population growth, lack of susceptible lands for building(constructing)residential religion without any aggression to nonresidential areas and without any land use change in pilgrimage and tourist places, reduction of ready money and buy power among populace, are all factors that have lead authorities to utilize new established legal constituent of time ownership as a solution for these problems and bound it to time factor for the purpose of getting best results. For this reason and due to the necessity of explaining this kind of possession principals in Iran's law, primary concepts and components of this legal constituent (organization) were investigated in this survey and then they were conformed with current legal principals in our country and also to holy legislator (lawgiver)'s instructions. For this purpose, the pros and cons were presented and compared. The results implied that, to some extent, the way for accepting this new legal establishment in Iran is open; because not only opponents have no convincing reasons for their pretensions but also there are some instances of these kind of limitation in common transactions and Islamic contacts. Mentioned reasons and also advantages of this legal establishment, obliged researcher (writer) to present legitimate and theoretic justification for existence of this organization, so different approach for access to these subjects in Iran's law and jurisprudence were investigated. It must be confessed that the main solution for this problem is to approve and execute particular laws and regulations of this kind of possession and it wont obtain without outstanding lawyer's cooperation and rewriting enacted laws.