seyyed hossein safaei

In this paper, the discussion about the civil liability of minors and mental patients has been discussed in the form of a comparative study, with the descriptive-analytical research method. And this central question has been answered that basically, what criteria should be used to measure the harmful behavior of minors and people with mental disorders?. A look at the history of civil liability clearly indicates that the law of civil liability has always been at a dilemma  in answering this question: On the one hand, emotional, moral, fairness and substantive justice issues require the determination or modification of the civil  liability of these people, and on the other hand, the final goal of the law of civil liability, i.e. restoring the previous situation and compensating for unjustified losses, complex personal explorations, mental and psychological explorations encountered with serious doubts!. These doubts have caused the legal systems to choose different points of view in this regard: Some have taken the side of the loser and defended the rule of objective criteria in the law of civil liability. And some people are also inclined towards supporting the minor and the insane and have adopted the subjective criterion of fault; Despite this, it seems that we should choose a middle approach and use the " Relative objectivity " criterion as a criterion for evaluating the behavior of minors and patients with mental disorders and based on this, proposed a more flexible and disciplined interpretation of "conventional behavior" in Articles 951 to 953 of the Civil Code.

First, a description is given of the decree issued by the Islamic Consultative Assembly regarding the lack of jurisdiction of the Court of Administrative Justice to deal with complaints made concerning decrees made by the Supreme Council of the Cultural Revolution and the Supreme Council of the Cyberspace. Following that description, and with reference to the negative reactions of research centers, elites, and scholars to this plan, which were ignored by the Islamic Consultative Assembly, a report is presented on the decree issued by the High Supervisory Body of the Expediency Council, rejecting this plan. In conclusion, the aforementioned case is examined and analyzed with the aim of identifying negative consequences and signs of dysfunction in the working of the legislative body. Finally, the importance of identifying a means to prevent the recurrence of these dysfunctions is stressed.

A comparative study in the theory of imprevision after the amendments of French Civil Code in 2016 and comparision with the similar jurisprudence rules in Imamiah jurisprudenceAbstractAlthough in jurisprudence the reference to the theory of Imprevision is relatively limited, but nevertheless some rules and principles of jurisprudence such as the rule of hardship, new swindling and harmlessness in justifying such theories have been cited by legal writers. Although some jurists have equated the harmlessness, hardship and new swindling rules with the theory of Imprevision in French law, a distinction must be made between the above rules and the theory of Imprevision. However, the theory of hardship has enough consistency to resolve the troublesome situation of unpredictability and prevention until the ambiguity is resolved and a new rule is enacted. In other words, judicial modification or revocation of the contract, like the theory of non-contingency after the amendments to the French Civil Code, can be deduced from the rule of hardship.Key Word: theory of Imprevision, harmlessness rule, hardship rule, the theory new swindling

Minimal contemplation of the institution of damages under Iranian legal and contractual liability systems is the reason leaves the constant temptation of a legal study (compared to other legal systems and the common experiences especially formed in the field of international trade). Consequently, review of the methods for evaluation of damages and reconsideration of the notions brought in modern world (with a glance at the economic requirements of the progressive countries such as Iran) seems inevitable.

This study attempts to reconsider, at the very first point, the concept of “actual harm” under the Iranian legal system (as well as the contractual liability system) which leaves a major impact on our economic ambiance. We, as the Iranian lawyers, are acquainted with the phrase “there remain the possibility for the actual harms only to be compensated” (or claimed to be compensated). In light of the modern world progresses (as well as the theories rendered during the same) and the complexities of the relations therein, we have to apparently reconsider the veracity of the said phrase. The point, in our view, is laid in our contemplation of the institution of damages as a remedy for breach which lead us to go beyond the restitution of the aggrieved party’s former status. This is, indeed, the role of economic notions in modern world which enables the similar construes.

During this article and having studied the methods of evaluating the damages caused by non-performance of the obligations in English legal system (as well as exploring the latest studies in this field) and also a number of most reputable international legal instruments such as United Nations Convention on International Sale of Goods, Undroit Principles of International Commercial Contracts, Principles of European Contract Law and Draft Common Frame of Reference, we tried to support a construe under Iranian law which goes beyond the current contemplations regarding the damages.

United Nations Convention on International Sale of Goods (“CISG”), having considered the methods for valuation of damages in Articles 75 and 76, has also invalidates both the subjective and objective tests in claiming the damages. In other words, the modern world necessitates to even remove the subjective test in the course of appraisal of damages (as referred in Article 76 of CISG). In addition, other major international instruments have almost paved the same path and approved the methods of “buying the goods in replacement” and “current price of the goods”. This point reveals when we come up with Article 7.4.13 of the Undroit Principles of International Commercial Contracts (“Unidroit”) and compare the same with Article 230 of IRI Civil Code. Thus, the institution of damages is mainly designed to cover the expectations of the parties before entering into a contract and we can, consequently, come to conclusion that “Restitution Basis”, as a minimal construe of the same, shall stand in exterior of the territory of damages.Analyzing the economic outcomes of “Restitution”, “Expectation” and “Reliance” methods as well as more recent theories such as “Incomplete Contracts” and “Efficient Breach” (besides the studies based on economic analysis of law during the years of 20th century), with due regard to the necessities of the local market and during the short term at least, we can rely on a justifiable basis like “Expectation”.

Taking the foregoing into account, we have to remark on a few points as follows:1) The legislator’s approach to the institution of damages shall be varied at the very first stage so as the efficiency of the contractual liability system be improved (in terms of legal view point and more particularly in terms of economic point of view). Providing a set of certain and practical methods for valuation of damages, empowers the parties to measure the risks (and the scope thereof) and cover the same through the means such as insurance. Accordingly, the proposed techniques by the international instruments are so close to our dominant notions under Iranian (and Fiqhi) framework. Having done the same, the given approach in our system will become more consistent with the prevailing methods in Common Law (realization of “Expectation Basis” as the pioneer ways suggested by the classic division of Fuller and Perdue).2) Concentration on the criminal feature of the liquidated damages assists us to guide the appetite of the legal system to Expectation and Reliance Basis as the real outcomes of the concept of damages while the Restitution Basis may be analyzed within the area of termination and the consequences thereof.3) Insofar as we know, the law on adjustment of the contractual terms has a major impact on modern theories raised in this respect. However, even if the re-negotiation of the said terms enables the parties to achieve a sort of post efficiency, this kind of adjustment would certainly damage the former distribution of the contractual risks as considered by the parties in prior. So, in order to design an efficient scheme for the parties, we have to consider (inasmuch as viable) the nature of the given risks and the manner to cover the same. By the way, comparing the effects of such studies with the key notions of the Iranian legal system, the economic impacts of the relevant methods on a progressive economy such as Iran shall not be ignored. That is the reason we propose not to copy the ultra-modern theories such as “Incomplete Contracts” and “Efficient Breach” and focus on the “Expectation Basis”.

Regarding using new instruments and contrivances for protecting the deserted or ill- parented children, English legal system is considered as one of the advanced and old-line ones in the European Union. Through the present research, we see that fostering process in English legal system is a two -stage one. The first stage is limited and temporary separation of the child from the birth parents and biological family; and, the second stage is issuing the (final) fostering order. Because of existing different variables including social sensitivities, psychology, etc., the English legislator has determined just general rules and principles. On the other hand, through judicial process, English courts have taken the responsibility of codifying certain detailed regulations. On the same direction, by considering the principle of child welfare preference to other issues, English courts developed the certain invincible (final) order which faced with criticism due to some reasons .

In This study, the transfer of author's moral rights will be considered in legal and jurisprudence's point of view. Despite evidence of possibility for the transfer of author's economic rights, the possibility for transfer of moral rights is doubtful. To find the correct answer, first of all we tried to identify and analyze conceptions of RIGHT, AUTHOR, and types of transfer and then we will consider barriers of transfer of this type of rights from legal and jurisprudence's point of view. Generally, legislators are opposed to the optional transfer of moral rights as they suppose it as one's integral part of author's personality. Islamic jurists besides their opposition of author's optional transfer of moral rights announced their opposition because of lies and frauds occurrence in the issue. Authors believed that attention to the target oriented jurisprudence and understanding the nature of emerging issues helps to a correct analysis; authors believe that the barriers on transfer of the right has been well criticized and analyzed here.

Ways of compensation in civil liability، which are the ways taken by the aggressor to execute his obligations، are determined based on civil liability purposes. These purposes include: perfect compensation، consent of the aggrieved party، and restoration of his previous status (restitution in integrum). Given that the originality of these purposes is different in legal systems، the ways to provide them are not the same. These ways are generally as follows: restitution in kind or restoration of the previous status، which is represented in different forms، and equivalent compensation، which has two forms: non-pecuniary compensation (giving the substitute) and pecuniary compensation (paying money). Although the general principles of these ways are more or less the same in different systems، the quality of their utilizations and preferences is different in legal systems. The two main ways of compensation are not along with each other، so that each party can freely choose one. But the transposition between them is not related to the public orders، so both parties can compromise the contrary، or the courts will take appropriate way.