جستجوی مقالات مرتبط با کلیدواژه « انتقال » در نشریات گروه « فقه و حقوق »

One of the complicated issues related to financing contracts is to give facilities to applicant in exchange for the purchase of credit documents, which is called "factoring" and "debt purchase" in the British and Iranian legal systems, respectively. Although in English general law, due to the analysis of such an act based on the institution of novation and necessity of agreement of debtor, creditor and transferee, the possibility of such assignment was faced with problems in jurisprudence and civil law, there is no doubt about the possibility of such assignment by agreement of creditor and transferee, although there is no consensus on nature and conditions of such a legal act, especially possibility of exchanging two debts.

The research method in this article was descriptive-analytical.

Ethical Considerations: 

All ethical principles have been followed in writing this article.

Although there are problems in the general rules of two English and Iranian legal systems, regarding the possibility of assigning such a demand to each of them, there is consistency in doing it based on negotiaable instruments.

Today, factoring operations in British law and debt purchasing in Iranian law are carried out in context of negotiable instruments, based on which, negotiable instruments are considered due to easy transferring of rights arising from it by creditor to new holder and do not transfering of obligations and guarantees of former signatories, it has been decided and two legal systems have come closer to some extent in this regard.

A unilateral promise in this article is a statement made by a person with the intention to be legally bound to do or refuse to do something or transfer property to another. Is such a promise binding without acceptance or not? There is still disagreement between jurists in European countries as well as Iranian jurists. Obviously, the concept of a unilateral promise communicated to the addressee is different from the contract and pre-contract negotiations. Because the promisor performs this act with the intention of fulfilling a legal obligation and creating trust and confidence, it will have legal effect. This legal act can only be justified in the form of an Iqa’ (Unilateral act). Iqa’ as a general theory and in the light of the rule of will, and according to narrations and verses, has an unlimited scope and includes a unilateral promise. Therefore, the will itself is the criterion as a source of commitment, whether it comes from a promise or not. So that the source and requirement of duty arise from the promise in the voluntary act, and the law also protects. The law protects any legal act by specifying it and even by not obstructing or by remaining silent if it is not contrary to public order and good morals. It seems that Article 10 of the Iran Civil Code, which is enacted in the case of contracts, is not specific but rather overriding and can include any legal action, including a unilateral promise as an Iqa’.

October 7, 2023, marked a significant turning point that not only disrupted regional dynamics and agreements but also once again brought the longstanding Israeli-Palestinian conflict to the forefront of global attention and legal discourse. Following an attack by the Hamas group, the Israeli occupying and apartheid regime launched a massive and unprecedented assault on Gaza.
When considering the right to use force in accordance with jus ad bellum, it is important to recognize that occupation is intended to be a temporary and transitional circumstance. Occupying territory during times of war does not strip the occupied government of its national sovereignty, nor does it confer national sovereignty upon the occupying forces. Furthermore, prolonging the occupation does not legitimize the act of occupation. It is on these grounds that international law does not recognize actions that seek to make an occupation permanent.
The International Court of Justice, in its advisory opinion on the construction of a barrier wall by the Zionist regime in the occupied territories, affirmed that member states of the Fourth Geneva Convention are obligated to not recognize the illegal situation created by the occupation, including the construction of the barrier wall, and to abstain from providing any assistance in its construction. Under the provisions of the four Geneva Conventions, the humanitarian rights of individuals in occupied territories are to be upheld, regardless of whether the occupation is met with armed resistance or not.
The guiding principle of occupation law is to safeguard the sovereignty of the occupied government and protect the security and rights of the inhabitants of the occupied areas. The post-World War II world order, founded on the United Nations Charter, emphasizes the prohibition of using military force and upholding the territorial integrity and political independence of nations, thereby deeming occupation a form of territorial aggression. Humanitarian law underscores the temporary nature of military occupation and prohibits any actions that seek to alter the demographic composition of occupied regions.
While it is possible to establish occupation without resorting to ethnic cleansing and to occupy uninhabited land, ethnic cleansing serves as a clear indicator of the occupier's intent to perpetuate and institutionalize the occupation, with the aim of supplanting the original inhabitants and establishing their own rule. Ethnic cleansing, while not explicitly listed as a standalone crime under international law, aligns with the broader category of forced population transfer and deportation, both of which constitute international crimes.
The occupied state of Palestine serves as a poignant example of the repercussions of such war crimes, particularly in terms of violating the fundamental right of a people to determine their own destiny, safeguarding against the enduring impacts of prolonged occupation, and preventing actions that seek to entrench the occupation's longevity.
Expulsion entails the removal of individuals from one country to another, whereas forced population transfer involves the displacement of civilians within a country's borders, without necessitating their crossing into another nation. While deportation is explicitly defined in the statutes of international criminal tribunals, forced population transfer has been expressly codified in the Rome Statute, under the broader category of "other inhumane acts".
In conclusion, the perpetuation of occupation through actions such as ethnic cleansing, forced population transfer, and deportation not only flouts international law but also undermines fundamental human rights and perpetuates cycles of conflict and injustice. It is imperative for the international community and legal scholars to remain vigilant in upholding the principles of temporary occupation and safeguarding the rights and integrity of occupied populations.
The crime of population eviction comprises two essential elements: coercive behavior leading to forced eviction and displacement of the population. The mandatory element of the crime of deportation involves what is known as "open behavior," where the perpetrator may engage in various acts such as murder, sexual violence, robbery, and torture to carry out the deportation. Coercion in this context does not necessarily involve violent actions; the use of coercive conditions alone is sufficient. In addition to eviction, the destruction of homes and available resources to establish new settlements violates the right to occupation.
In its 2004 advisory opinion, the International Court of Justice explicitly declared Israel's policy of constructing and developing settlements from 1977 onwards as contrary to Article 49 of the Fourth Geneva Convention. This policy was deemed an example of the illegal transfer of the population to occupied territories, a blatant violation of international law. The transfer of settlers to illegal settlements is considered a criminal act, similar to the settlements themselves, as it is typically done voluntarily and with the complete consent of the settlers. Thus, accountability falls upon the settlers themselves, a responsibility that is often forgotten.
The Rome Statute, like the Geneva Convention, considers voluntary transfer as part of the crime, aiming to protect the population of the occupied territories rather than the transplanted individuals. Even in cases where settlers voluntarily move to occupied areas with various motivations, individual criminal responsibility may still apply. This aspect sheds light on unexplored facets of occupation rights, challenging the common notion that population transfer is solely a state crime attributable to the occupying government's actions.
Some argue that ordinary individuals settling in occupied areas without governmental support should not be held accountable, as voluntary settlement may not always be malicious. However, according to experts such as "Dinstein," an Israeli authority on humanitarian law, voluntary settlement can still pose legal implications if done in coordination with occupation forces or through organized efforts.
The research herein analyzes the settlement actions of the Zionist regime in Palestinian occupied territories and the influx of Jewish settlers into these regions. The study concludes that Israeli settlement constructions, necessitating ethnic cleansing of the occupied areas, constitute criminal behavior, alongside the resettlement of settlers within these territories. Settlement involves the acquisition of land and property from original non-resident inhabitants, an act constituting war crimes and significant violations of humanitarian rights, punishable under the Rome Statute.
Voluntary settlement, being a form of population transfer, carries criminal responsibility for the settlers involved. Thus, under international criminal law, the construction of Israeli settlements and the relocation of settlers to occupied territories, achieved through ethnic cleansing and forced displacement of native Palestinians, are deemed war crimes for which both settlers and those facilitating or encouraging such acts are held accountable.

Numerous works and principles can be extracted from the concept of contract. The principle of binding implies that the parties implement what they have undertaken. Therefore, the possibility of transferring obligations from one of the contracting parties to another seems contrary to the principle. Therefore, the consent of the other party is a necessary condition. On the other hand, some people believe that the contract has a kind of economic tax and, like other property, it can be transferred. On this basis, jurists use a term called contract transfer, which is common in Iranian and French law, many aspects of which remain unknown. The authors of this article in this research with a descriptive-analytical method, considering the recent amendments to French law, examine the legal nature of contract transfer, try to fill the gaps in Iranian law in this field by providing the necessary proposals and On the other hand, explain the need for effective identification of this legal entity

The transferability of certificates of priority right to use housing facilities is worthy of attention both from a jurisprudential and legal point of view. The description of the problem depends on the explanation of the purchase and sale of loan franchises and facilities; Because what is really being transferred is the royalties, otherwise the mere use of these papers, by itself, is worthless. The purpose of this article is to study the legal jurisprudence of the transfer of certificates of priority right to use housing facilities. This research is of a theoretical type and the research method is descriptive-analytical and the method of collecting information is library-based and was done 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. The discussion of the transfer of the certificate of priority right to use housing facilities depends on the explanation of the feasibility of buying and selling the right. according to the central bank's circular, the transfer of housing priority right certificates is unimpeded if it is subject to the relevant laws.

The sale of a future property is a transaction in which the property does not yet exist at the time of the contract’s conclusion but will exist in the future. The property may be passing of ownership or an ascertained (i.e. definite and specific) object. This study investigated the latter type, that is, the sale of a future ascertained object. There are two obstacles to the validity of this contract. The first obstacle is the impossibility of ownership of nonexistent. The second obstacle is that this type of sale is uncertain (Bai' al-Gharar). However, from an analytical point of view, neither of the said obstacles can impair the validity of this type of contract because both obstacles can be overcome. In French Civil Code, making commitments concerning a future property is explicitly authorized. In English law, the sale of future property, which is a type of unascertained property, is not known as a transfer, but as an agreement to transfer. In the Iranian legal system, the legislator has not addressed this subject through a general rule. However, belief in the accuracy can be improved through foundations governing the legal system and some sporadic legal texts including Article 842 of the Civil Code. This study is conducted by means of a descriptive-analytical method.

Regrettably, production and productivism in our country face some vague and sometimes complex obstacles and problems. Many of these obstacles are rooted in the socio-economic structure of Iran, and despite all the efforts that have been made so far to boost production, as a strong obstacle, this structure has always closed the way for national production to flourish. Definitely, by removing some obstacles we can see products flourish and create the ground for sustainable productivity and employment. This research addresses some of these obstacles and problems and present some suggestions to remove them. The qualitative method of research with the general purpose of examining barriers and production problems is employed. After identifying the most important challenges on the way of production, the study classifies some indicators and criteria as the main ones and some others as sub-indicators. Then, to prioritize them, it uses a pairwise comparison using a questionnaire. The analysis of the experts' opinions was performed using the Analytic Hierarchy Process (AHP) technique and using Expert choice software and the priority of each of them was determined. The research findings showed that inflation, widespread imports and smuggling of goods, and finally the banking system are the most important barriers to production, respectively. Finally

The current study presents the latest legal and fiqhi findings on the punishment of Corona transmission from the perspective of criminal jurisprudence and criminal law. Corona transfer is a crime according to fiqh and the Islamic Penal Code. In case of death or injury of the recipient, retaliation of the corona carrier is canceled and diya must be paid instead; since retaliation in a deliberate crime is conditional on perpetration in the eyes of some jurists, the predominance of the act in the crime and the attribution of the crime to a criminal in the eyes of all jurists, while the fulfillment of these conditions is questionable here, so according to the rule of caution in blood [revenge], the rule of dar’[1], the principle of ‘ehtiyat[2], etc. retaliation is not applied. In the case of quasi-intentional crime and the crime of sheer error, retribution is not applied by all jurists everywhere, including here. The transfer of corona with intent, knowledge and intent to waste or harm members of society, is one of the instances of Ifsad-e fel-Arz[3] and thus punishment is imposed on the perpetrator.

Commercial and Stand-by Letter of Credit are two of the fastest and safest international payment instruments. What has made them even more desirable is their negotiability; this is because it exempts people involved in international commercial contracts from paying greater fees and spending long hours applying for a new letter of credit. However, the reason why negotiability has led to greater speed and security of letter of credit is undoubtedly the unique mechanism of transfer and the precise conditions governing it. These advantageous conditions have given birth to desirable consequences in the legal field. Therefore, the greater our awareness and knowledge about this mechanism, and its conditions and effects, the greater would be the benefits that can be derived from it. Such knowledge also depends on a comprehensive study and review of the successful experiences of others. The present article is a step towards providing a comprehensive picture of the rights governing the transfer of letter of credit through the application of the current provisions in the United States legal system as a pioneer system whose approaches in certain cases can boldly be asserted to be unique. A review of the United Nations and the International Chamber of Commerce, who play a strategic role in this regard and whose regulations are accepted by the majority of industrialized and developed countries, plus the Iranian legal system, can make the study more tangible and practical.

The coincidence of the alal yad rule on the illegal transmission of data-message has faced with substantive difficulties, which must be interpreted based on custom. What is understood from the appearance of the word "acquisition" is palpable reception. In the cyber space, acquisition doesn’t imply the mentioned meaning and is merely the transmission of a series of information. Some scholars believe that the word acquisition does not appear only in the palpable reception, but also with the affidavits that exist from the verses, the subject of this word is expanded, which is also totally true in terms of data-message transmission. Since the data-message is considered ascorporeal property, in payment case the same existing credit will be refunded. The present study aims to compare the terms of acquisition and payment on illegal data-message transmission. The result is that transmission customarily, is an example of the meaning of acquisition that is supported by some evidences that.

Assignment of contractual rights and obligations is one of the most important and well-known issues in different legal systems. The assignment of contract is recognized in Pre-Sale Building Act ratified in 19/1/2011. The legislator, in articles 17 and 18, specified terms and qualifications mentioned in this article. This article is based on descriptive-analytical method, and strives to discuss principles and standards in assignment contract and its justification in different legal systems. In addition, it also analyzes the assignment of contract in Pre-Sale Building Act. In this legislation, one of the most important terms known by lawmaker is the obligor’s consent for assignment in writing and official assignment. It is crucial that the legislator considered this assignment which has many economic effects and it was a great step for unification of the assignment of contract in the Act. Assignment of contract is recognized separately in uniform law as well as in laws of different countries such as France, but it has not been considered in Iran.

Agency is subrogation and based on the majority of Shi'a jurisprudents and Iranian civil law an irrevocable agency is a kind of agency in which the agent's agency or the failure to dismiss him as a condition for the outcome of the contract is required. Today, irrevocable agency has become more prominent among traders than what it deserves and the trade conventions of the past decade have considered the irrevocable agency as a contract in which a person (the client) through obtaining the cost of his financial rights and signing the document gives that property or right to another person (agent) and cannot have any claim over that property or right. However, the condition of the agency or not being dismissed during necessary agreement does not change the nature of the agency and does not result in the change of the nature of agency from permission and subrogation to an eternal phenomenon. With such a condition, the client cannot dismiss the agent and in other sentences the permissible contracts, such as its dissolution due to the death and insanity of both sides, will not be influential. The present article aims at highlighting the weak points of an irrevocable agency and presenting a new pattern capable of replacing with it. The proposed template is a "transfer of sale right contract'' which is qualified enough to compete with death and insanity. ''Right of sale" as one of the components of property right has the necessary capabilities to replace the permission and representation. The focus of the text is on the fact that this capability should be proved taking into account the existing legal capacity so that any possible shortcomings can be solved through legislator's intervention.

The general rule of Key Money or Goodwill, as is common among people in Iran, could be found in Note 2 of Article 6 of the Landlord-Tenant Relations Law passed in 1997, which states: "If the landlord transfers the key money to the tenant with a correct legal form, at the time of eviction, the tenant receives the right to legally demand key money on fair day rates." The legislator proposes two methods as examples of the "correct legal form". The question that arises here is that: By these two methods, is it possible to create a right with particular characteristics required in that general rule, so as to be able to jurisprudentially correct the common key money deals in accordance with the law, or not? By analyzing the jurisprudential foundations of these two methods, it becomes clear that no one can create a right to be transferable and legally demandable to the rate of the day. Therefore, the two methods mentioned in the Law of 1997 aren't competent to jurisprudentially correct the common key money deals, and are inconsistent with that general rule.

Distinguishing the nature of assignment of incorporeal property, have important effects in Iranian Law. These Properties are two types. Intellectual and, other than incorporeal things. In relate to second group­­­­­ (as, tenancy right, share holders….) the assignment of them is disputed. From one view, The sale regulations could be enforced, the others rejects This and says these assignment should n' t regarded as sale but Only one contact accord with Article 10 of Iranian civil Act. The later resolution may be affirmed, Thus enforcement of sales regulations May be rejected.

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.

The transfer of intellectual rights is the need of society and on the rise. Among certain contracts, the contract of sale is more rampant and applicable and the rules governing it enjoy special importance. The question is whether or not it is possible to incorporate the transfer of these rights into the contract of sale and consider it as having the rules and impacts of a sale contract. Speaking from a legal perspective, some experts of law have presented analyses trying to argue that these rights are transferable to the contract of sale but this opinion is not acceptable because according to a legislator and in view of the nature of these rights, it can be said that as per the law, the transfer of these rights is not possible within the framework of the contract of sale and that it can be accepted in the form of sulh(amicable settlement) or indefinite contract. From a jurisprudential point of view, the contemporary jurisprudents have flexibly considered the rights to be a kind of property and this attitude about the transfer of rights being a kind of sale is now so well-known among jurisprudents.