جستجوی مقالات مرتبط با کلیدواژه « عقود معاوضی » در نشریات گروه « علوم انسانی »

By studying the existing works regarding the right of lien, it can be concluded that this right exists as an "absolute negative right" for the parties in the contracts, by which the parties can refuse to fulfill their obligations immediately after the conclusion of the contract. . make their obligations subject to fulfilling the obligations of the other party. In this theory, this right exists absolutely and unconditionally for each of the parties. This theory is stated in Article 377 of the Civil Code. In the research process, we come to the conclusion that this reading of the mentioned right is not without problems and it should be considered against some legal and jurisprudential principles and in some cases it leads to "intentional violation". In addition, the theory of "suspension" with the use of "objection and defense" can be presented as an alternative theory. According to this theory, not only is the lien not absolute and negative, but it is not multiplied by the number of parties.

Lien is a balky right in exchange contracts each of the parties has the right to seize the property after the contract is signed unless the other party fulfills his commitments. In such contracts, submission and receiving the goods matter. Using analytical-descriptive methods and collecting library data, the researchers have investigated the reasons for creation and waiving for lien in exchange contracts and have concluded that the conditions of creation and waiving in the following cases are met in jurisprudence: "existence of sound exchange contract between the parties", "existence of main and bilateral commitments" "occurrence of the good and price in the present time" "non-submission of the each of the two case of right", "submissiblility of on the parties of contract", and the most important of such a right is the existence of main and bilateral commitments. Among the conditions of waiver are the following: "the will of the rightful owner (waving feasible by two parties)", "submission of one the two cases by parties", "providing security and bill for the price and goods", "determining time periods for the price or good", "waiver of bilateral obligations and debts", and " waiver of the right in custom". Among the mentioned conditions "waiving by two parties" is the most significant condition of waiver in exchange contracts.

Right to Refrainment from Implementation of Terms of a Contract in the right to refrain from performance of terms of a contract or the lien right is the right to avoid implementation of a contract terms until the other party implements its terms. It usually happens in exchange deals such as transaction and lease. It is not confined to transaction. Attempts have been made in this writing to define lien and its nature on the basis of this right in exchange deals from the viewpoint of lawyer and jurisprudents. Among these bases, what looks more legal it that after the conclusion of a contract and commitment of the two parties to submit the exchange subject to each other, one cannot set any preference for any of the parties to submit first, for the two rights are created simultaneously. Therefore, any of the parties can subject performance of his/her obligation to the discharge of obligation by the other party. Therefore, on the basis of Imam Khomeini’s viewpoint, one may conclude that the most important basis of this right is the foundation and practice of the rational people.

Some of rights and obligations will be conducted by marriage, such as right of dowry for wife and right of Allegiance for husband. Jurists believes that rights Couples will be charged exactly after marriage based on regulation of Exchanges, so incumbency of giving dowry and its nature in relation with Allegiance, is an challenging issue and required independent comprehensive discussion.
In this article, Authors after searching in reasons and statements of Jurists and Lawyers, believes that the exchangeability nature of marriage is not true, but in giving of rights of both sides of marriage, it is possible to implement the regulation of exchanges chapter and accept that marriage is an exchangeable contract, based on period of dowry ownership and incumbency of its giving. Furthermore, ownership of wife to her dowry will be conducted exactly after the marriage and such as other exchanges that condition of ownership of wife to dowry is that Allegiance to husband for incumbency of giving dowry.

A discussion of sanctions relates to nonconformity with authenticity conditions of contracts called encounter such as invalidity and corruption. Basically, if the contract follows without substantive terms and such form conditions prescribed to be valid, it will be invalid and respectively has no implication to this contract and subsequent enforcement has no effect. This study aims to review the concept of invalidity in Imamieh jurisprudence, Iranian law and the impact of these sanctions on swap contracts. Based on the concept of invalidity and responsibility arising from swap contracts, it can be concluded that with regard to the use of related concept between “invalidity” and “corruption”, we cannot cite compensation as a result of the invalidity of swap contracts, because there is no agreement to be regarded that person as person is liable.

Lien is the right of recoupment by one party until liability fulfillment by other party. This right becomes binding in exchange contracts such as: sale and rent (lease). The main criteria for separationg them from non- exchange contracts is commitment and confrontation between parties, such that if one of these two is removed, the contrant will not been of exchange type. In addition to describing A major reason for conducting this research is investigation of the lien enforcement domain and lacking of its application for sale as well as highlighting its effects and consequences in mutual interest contracts from the viewpoint of jurisprudents. The research method is librarian and by using of appropriate.
In this writing we described lien. Results showed that enforcement domain of the lien is not limited to sale contract; rather it involves other contracts such as rentand mutual interest settlement. Some of its consequences are its deposition on the lienclaimer andlacking of need to bring a suit and the court sentence for enforcing it.

Marriage contract is a source of ample rights for couple and paying dowry to wife is one of them. After marriage she can claim her dowry before intimacy (if it is on demand). According to article 1185, if the husband is unwilling to pay she can exercise her right and not respond to her husband's demand. In theological and legal context it is known as the right of lien, but still there exist a great number of unresolved questions, and it remain a controversial issue. It is worthy to note that it has been disputed from legal and jurisprudential stand point. This article also attempts to clarify the questions regarding the mutual relation of spouses and the conditions which nullify this right, and it illustrates clearly its legal inadequacy with reference to legal and jurisprudential scholar's stand point. In view of theologians, marriage contract is a mutual contract (Aghde-Moavezi) or of quasi mutual contract (shebhe Moavezi) which is based on three theories: 1.Both parties, husband and wife have the right of lien. 2. Neither has the above mentioned right. 3. Only the wife is entitling to the right of lien. In spite of all criticism by some jurists and theologians on the right of lien which is absent in legal context; it is an exception to the law, to support the woman's right so that women should not be compared with men. Solvency and insolvency of a husband has no affect on the implementation of right of lien and still he has to pay her legitimate right.

The crossroad, or the main road, of the private and personal rights is the Lawful rights for commitments. So, it is noteworthy to consider the guarantee of the commitments rights. A person who makes a promise according to agreements or contracts is bound to fulfill his obligations lawfully. If this committed individual refuses to fulfill his dedications what the creditor shouls do to achieve his legal rights, or how he should claim his charges, and how he can have the offensive person sued based on lawful agreements.This paper seeks to investigate how the rightful person should have his rights met. The paper goes on to offer one of the methods based on the Islamic Law System to challenge the offender to keep his commitment, that is, he is right by law to have the offensive person sued and even have him imprisoned.This case is the most important reason with the intellectual and scholars to consider the right to imprison true for the creditor.

The proper application of the regulations of contracts depends on theactual knowledge of each of them. Although certain contemporaryjurisprudents have dealt with some aspects of the nature of contracts whilediscussing sale contract, no distinct and sufficient text has been written onImÁmiyya jurisprudence of contracts. The present article seeks to raisesome important considerations presenting outlines of the general methodof knowing the nature of contracts. It deals briefly with distinguishing theontological approach from the conceptual one, distinguishing thedelimiting elements from the causal ones, that of contracts property fromvows property, explanation of causal and effectual attitude to contracts,distinguishing the nature of contracts from their effects, their compoundor simple nature, all of which contribute to finding the essence and natureof contracts. To come to more tangible conclusions, I have delimited thecontracts under discussion to reciprocal ones. I have also studied certaincases of applying these considerations in sale contract with a comparativeapproach