seyed mohammad hadi saei

Agency by necessity in English law is a situation in which a person acts on behalf of another person beyond their previous agreement to prevent harm to the principal, and for such an institution to exist, there must be a prior relationship between the agent and the principal and due to the necessity created in the particular situation, the agent goes beyond the scope of the granted authority and acts in the principal's interests. In this article, after reviewing several statutes in Iran's law, we came to the conclusion that the mentioned institution is recognizable in our law, but no separate and distinct provisions or statutes regarding agency by necessity are legislated in our law. In this research, an attempt has been made to review the legal provisions that are compatible with the definition of agency by necessity. Therefore, by identifying agency by necessity in English law, in addition to identifying the advantages and disadvantages of this institution, we want to examine its existence or non-existence in Iran's law, and, if possible, use the advantages of this institution and if this institution is identified in Iran's law, interpret that in accordance with our legal system and provisions so that we can  use this legal institution in its best way

Background and The presence of healthy competition in the market increases the efficiency of commercial operators and the expansion of innovation, which results in an increase in the quality of goods and a decrease in final prices. Therefore, the aim of the current research is to examine the executive and legal guarantees of consumer protection with regard to the relative potentials in the general rules of contracts.
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.
  There is a special connection and solidarity between competition law and general contract rules, because the legislator has tried to limit the limits of the principle of freedom of wills and the principle of competence and validity of contracts in order to maintain public order, especially in the field of social and economic issues.
Guarantee of civil executions including the order to terminate, stop and not repeat any type of contract, agreement and understanding involving anti-competitive procedures, order to hand over shares or capital acquired illegally, order to cancel or require suspension of illegal mergers, order to Non-activity in a specific field or region is the requirement to comply with the minimum supply and price range in exclusive conditions, etc.

Presentation of an appropriate criterion for understanding the nature of contract will result in useful application of this credit-based instrument in administration of the legal relations in a society. This is because lack of an appropriate criterion will cause discord and disagreement on determining articles of the contract and will eventually result in increasing cost of administering social relations, lack of certainty and lack of predictability. On this basis, the principal question of this research paper is about the nature of contract. To find an appropriate answer to the principal question of “What is the nature of a contract?” we have applied a descriptive-analytical methodology to find a criterion for understanding the nature of natural creatures per se in understanding the nature of contract as a clear example of a credit-based and hypothetical thing. Findings of this paper indicate that the nature of contract is synonymous with its quiddity and this quiddity is itself synonymous with the need for the existence of ultimate nature for a contract, i.e. the same goal for realization of which in social relations the contract has been created. Without such a goal, the existence of contract will be all in vain. Among experts at law, Dr. Mohammad Jafar Langroudi and among jurists, Imam Khomeini must be considered as outstanding theoreticians in the field who have both argued the need for ultimate essence of a contract as its nature. This theory stands counter to the theory of direct effects and is considered as a prerequisite for its nature as argued in Imamiya jurisprudence, whilst it has been accepted in Iran’s law in Clause 1 of Article 233 of Civil Code.

A bank account is a credit container created under a contract between an authorized depositor and the account holder, giving the customer the ability to deposit and withdraw money. Under UNCITRAL Model Law on Secured Transactions 2016, there are clear provisions on the creating security right against funds credited to a bank account. According to this law, the account holder can enter into a security agreement without the intervention of the deposit-taking institution. In this case, the security right cannot be effective against the deposit-taking institution unless pursuant to an order of a court or the deposit-taking institution’s consent.  If the security agreement is registered in the Registry, it can be invoked against third parties. It is also possible to involve the bank in the creation of the security agreement with a tripartite agreement called a control agreement, which in the latter case, the security agreement can be invoked against third parties without the need for registration. In Iranian law, although it is possible to implicitly derive the certifying to create security right against funds credited to a bank account from Article 21 of the Law on Elimination Barriers to Competitive Production and Improvement of the Financial System of the Country, approved in 2015, which speaks of a special bank account, but the conflict of this article with the provisions of mortgage in the Civil Code and its non-compliance with the general rules of mortgage, this implicit implication will not be able to persuade the legal community to accept the security right against funds credited to a bank account. Therefore, in order to keep pace with developments related to collateral transactions in the international legal system, it is appropriate to fill this legal gap by applying the provisions of the UNCITRAL Model Law.

The undisclosed agency is a kind of agency in which the identity of principal is concealed in the contract concluded between the agent and the third party and the latter conceives the agent is the real and genuine party in the contract. This kind of agency, as an exception to the general rules of contracts, was, for the first time, introduced in the English law of 18th century. Because, as we know, under the law of contracts, only the parties to a contract are liable for performing the contractual undertakings and the principal is a stranger and has no liability for the privity of contract. But the undisclosed agent bears the liability of principal not on contractual bases but on a tortious one. In the law of Iran, the matter of undisclosed agency has solely but impliedly been referred to in Art.196 of the Civil Code while this legal institution has long precedent in the Islamic jurisprudence and the views expressed by the Islamic jurists. Since, under the general law of agency, all acts and words of the agent are attributed to and for the principal and this may cause many losses to the third person ignorant of the presence of the principal, the present study is intended to elucidate the tortious liability of the agent and principal in such a manner that, in this direction, various legal and Islamic jurisprudential bases for tortious liability of them, such as the rule of deceit, estoppels and causation will be examined. Thus, the study will make it clear that, under the theory of undisclosed agency, not only the principal but also the agent is liable for compensating the probable losses incurred by the third party. It will also be proved that it the acts of the agent and principal if accompanied with mala fides may be counted as examples of the crime of conspiracy or fraud and punishable as such.