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

The destruction of profit and its consequent liability has a crucial role in regulating legal and social relations. In contracts, like hire, sale and sharecropping and also in extra contractual liability such as destroying, usurpation and receiving, lawyers and jurists have partially argued about the subject and have tried to offer a legal and jurisprudent interpretation, in order to compensate damage the incurred suffered from profit destruction. However, in some legal works, mix it up with the alike subjects as loss of profit and according to the mistake, they came up with the lack of profit destruction liability. In this article, in addition to separating profit destruction from similar institutions, and explaining its bases consequent liability, the theory of profit destruction is presented.

Since the majority of damages due to infringement of patent are lost profits, it is essential to govern its compensation. The US legal system has admitted the owner lost profits and reasonable royalty as two criteria for determining compensation. According to 4-staged Panduit’s way, in case of existence of demand in the market, absence of substitute in the market, patentee's ability to meet demand and proving profit margin, the 1st criterion is exploited. According to lost profits, only those profits can be compensated whose causes are available and the obstacle is absent. In case that even one of the Panduit’s requirements is not met or, at the request of the patentee, the amount of compensation is determined in compliance with the reasonable royalty. In Iranian law, separation of remediable and irremediable profits is treated like that of the USA, and only part of the future profits is remediable according to the principle of lost profits. In other words, patent profits fall into 3 categories as existing, pseudo-existing and probable. The 2nd category whose cause is available and the obstacle is absent, is remediable like the 1st category, as it can be commonly considered pseudo- existing, whereas the 3rd category is irreparable due to the absence of causes or presence of obstacle.

There are some differences in opinions concerning possessory value of profits and considering loss of anticipatory profit as a true loss; and,perhaps because of these very differences, conflicts are seen in opinions stated by the legislator. Since, in the convention and customary law,profits are taken as having some possessory value, it seems that, based on the more correct juridical rule of "Sic Utere Tuo Ut Alienum Non Laedas" as well as the certain tradition of the wise, loss of anticipatory profit may be deemed as certain loss. It may be thought that laws according to which loss of anticipatory profit is not guaranteed and demandable are referring to the losses of anticipatory profit which may be acquired; those laws which take it as being demandable, however, are referring to losses of anticipatory profit which may be certainly acquired.