جستجوی مقالات مرتبط با کلیدواژه "عدالت معاوضی" در نشریات گروه "فقه و حقوق"

Commutative Justice A suitable dress for the old body of civil law Abstract : Balancing the rights and obligations of the parties in contracts and exchange payments is one of the necessary tools in the interpretation of definite lawa and contracts . The aforementioned definition and the traditional criteria related to it cannot balance people’s rights and the commercial necessities in the modern world; thus, from a more practical perspective, commutative justice theory means the necessity of balancing the parties’ rights in bilateral contracts and its enforcement guarantee is compensation with the help of other valid legal principles. This theory in Iranian law, although not backed by explicit legal provisions, may be justified as an acceptable theory using analytical and jurisprudential reasons like “Waste of the Object of Sale before its Receipt” and legal options . Accepting this theory in business world today shall require toshare the idea taqydh no reason to obey the law and traditional rules . Based on the justice of the exchange, the seller faces the buyer who has not paid the full price; He can refuse to sign the official transfer document in order to enforce the lien .

Each of the options, depending on the source of its realization, provides the reason for the dissolution of the contract, but at the time of the conclusion of the contract, the "condition of revocation of all options" may be included in the contract, in order to prevent the owner from realizing the right of the option, and at the time of need, the other party should seek recourse to the mentioned condition and be freed from the contract's instability. In this regard, the current research, using the descriptive-analytical method and using the opinions of Imamiyya jurists and legal doctrine, tries to answer the question that how much of this condition has legal influence in the contract and can be cited? In the language of Qatabah jurisprudents, choice is recognized as one of the rights that can be revoked, and according to this, in Article 448 of the Civil Code, the legislator has considered the revocation of all rights in the contract as legitimate, so that it is considered a guarantee for the complete stability of the contract; However, the orientation of the court judges in terms of the basis and nature of each of the options and the need to pay attention to rules such as the negation of gharr, the observance of exchange justice, the prohibition of fraud, as well as the respect for the limits of the agreement of the parties, should be in the direction that the general condition for the dismissal of the bar of options do not impose on the parties and by insisting on the customary understanding and rational logic governing rights, do not exclude the owner of the right from resorting to cucumbers; Especially, in the civil laws of Islamic countries, including Iraq, the United Arab Emirates, and Afghanistan, the condition of rescission of the Kafe Khyarat has not been recognized, and only in the case of a defective cucumber, its rescission is explicitly accepted in the contract.

Establishing justice in contracts has always been the subject of many challenges, most notably the differences in explaining the concept of justice as well as the various ways in which it is implemented, including distributive and corrective justice. Accordingly, the main challenge of this research is to examine the concept of corrective justice and its place in the field of contract law and to examine some of its important instances in common law Iranian law. At the end of this article, it will be clear that reform justice is nowadays applied in the field of contract law in the assumption that the benefit of one contract equals the loss of the other party and that the correction of wrongful conduct in the performance of contracts is the result. This face of justice is in many ways, including disgorgement, expectation interest, contra proferentem in current contract law.Keywords: reciprocal justice, distributive justice, disgorgement, expectation interest, contra proferentem.

Whereas contracts are the legal tools for the substantiation of economic transactions, in order to respond to the needs of economic actors in accordance with the evolution of economic approaches, they have changed. Developments in economic schools can be classified in one sense in the form of classical, neoclassical and behavioral schools. The main purpose of the study is to examine the developments of contractual justice from the perspective of economic developments in the context of these schools. Recruiting a descriptive-analytical design, the study revealed that commutative and distributive justices are the foundations of contractual justice and complement each other. Commutative justice has always been the basic principle of contract law; however, its scope has expanded beyond the concept of fair pricing in the pre-classical era. Distributive justice, after the advent of neoclassical economics, became more prominent at the same time as the need for government intervention in the economy to address the side effects of a free economy. The school of behavioral economics, by questioning the hypothesis of rational choice and the neo-classical school of economics, raised the need to pay attention to the cognitive biases of individuals in decision-making, especially in the consumer market and in terms of standard terms. It has, despite the optimization of the concept of justice in contracts, at the same time, created fears of excessive government protectionist interventions in contracts. In general, commutative and distributive justice complement each other in establishing contractual justice.

From a legal point of view, one cannot expect the unfair distribution of contractual resources to be enforced. For the fair distribution of these resources, two theories of substantive fairness & procedural fairness have been proposed. According to the theory of substantive fairness, a fair criterion should be considered in advance for the outcome of the contract and care should be taken that the parties to the contract do not violate this criterion. Contrary to this theory, procedural fairness whose followers claim that there is no consensus on a particular type of distribution, try to control the formation process of the contract to make it fair, rather than considering the outcome of the contract. The main a priori criterion for fair distribution proposed in substantive fairness is the application of just price. There are serious doubts as to whether a just price can be considered as a good basis for making contracts binding and enforceable, because the justification for the need to a certain type of distribution under the name of justice is difficult due to disagreement over the concept of justice in the modern world. At the same time, accepting such a basis will make it impossible to justify the invalidity of other illegitimate contracts concluded at a just price. Of course, assuming the acceptance of the theory of substantive fairness, specified legal effects arise from the contract in order to restitute the situation of injured party, which , in turn, face with many difficulties especially in the case of price fluctuation.

The right to non-performance is mentioned in Articles 377 and 378 of the Civil Code on the subject of sale, as well as in the section on marriage in Articles 1085 and 1086 of the same and in Article 371 of the Commercial Code. According to these articles, either party can refuse to fulfill its obligation in order to urge the other party to fulfill the latter’s obligation. The right to non-performance can be defined as the right of the parties to refuse to fulfill their obligation in order to oblige the other party to fulfill his obligation. This right, which is based on reciprocal justice and the common sense, has been accepted as one of the methods of compelling the fulfillment of contractual obligations in Imami fiqh and in civil law. Article 377 of the Civil Code gives each seller and buyer the right to refuse to surrender the item of sale and the price, respectively, until the other party agrees to surrender. According to this article, the creation of the right of non-performance for the parties to the contract is subject to the following conditions: a) the contract involves an exchange, that is, two mutual obligations; b) the two obligations are supposed to be fulfilled at the same time: this means that the right to non-performance exists either when bothobligations are to be fulfilled immediately once the contract is made or, and based on a broader interpretation of the relevant rules, when the two obligations are agreed to be done at the same time in future.But with regard to the scope of its application, there has been some dispute as to whether this right constitutes an exception to a general rule, hence having to be limited to the contract of sale and to the exchange of the item of sale and the price in it. This probability is supported, on the one hand, by the fact that the right to non-performance is mentioned in the Chapter on Sale, and on the other hand, by considering that, although the right to non-performance is possible in exchange contracts, the bond between the two obligations will be lost as a result of termination or cancellation of the contract and the returning of the objects of the two obligations does not stem from the contract itself, but is a general duty directly imposed by the rule that prohibits individuals from possessing other people’s property without the owner's permission. In addition, the termination of an exchange contract discontinues the mutual obligations of the parties, hence leaving no subject-matter for the right to non-performance, and the parties’ duty to return the items is not the result of the contract, but represents the obligation to give others’ properties back to them. A different view is that the right to non-performance is a general rule in exchange contracts, which is discussed, as is the general practice in the Islamic legal treatises, in chapters on sale as an example of a general rule. A third hypothesis is that the right to non-performance should not be limited to contracts and has to be applicable in all reciprocal obligations, even those imposed directly by law irrespective of the parties’ will.  Therefore, this study seeks to answer the question whether the right to non-performance is applicable to all reciprocal obligations regardless of their source- contracts, tort liability or other rules. This descriptive-analytical study hypothesized that failure to recognize the right to non-performance at the stage of dissolution of the contract and other reciprocal obligations is contrary to the principle of the transactional justice and causes problems and unfair consequences when the items of the contracts are returned. Arguing that there is nothing that limits the right of non-performance in the stage of fulfillment of obligations, this article argues that this right exists not only in the stage of concluding contracts, but also in the stage where they are dissolved and the items are returned to their original owners, and also in mutual obligations arising from civil liability rules. The custom and the common sense does not warrant the differentiation between the stage of concluding a contract and its dissolution in both of which the parties are mutually committed to hand over the items to each other. The right to non-performance in the stage of dissolution of the contract exists according to the common implicit intention of the parties, whose authority is indisputably upheld by the custom especially the field of international trade, which gives it the same status as what is stipulated in the contract (Article 225 of the Civil Code). Thus, considering the need to study the principles of  the right to non-performance and its conditions and obstacles, this article will first explore the concept of the right to non-performance and its bases and conditions in general and will then focus on the principles applying to, the conditions of exercising, and the effects of the right to non-performance in the stage of the dissolution of the contract and its mutual obligations.A review of the Islamic legal literature shows that the courts have accepted a broader interpretation of the scope of the right to non-performance. Some of the court decisions upholding the termination of the contract of sale have made the return of the sale item to the seller conditional on the refund of its price to the buyer. It should be noted that there are two conditions for exercising the right to non-performance in the stage of dissolution of the contracts: first, there must be two mutual obligations; second, they must have the same cause. The article will, thus, propose the scope of the right to non-performance in the Civil Code to be amended, and the right to non-performance to be recognized as a general rule applicable to the conclusion and termination of all obligations according to which in all exchange contracts, in both stages of conclusion and dissolution, as well as in all non-contractual mutual obligations which have to be performed simultaneously, each party can make the fulfillment of his obligation conditional on the fulfillment of the other's obligation.

The requirement of contractual relations is based on the fulfillment of the obligations of each party. However, sometimes the obligor refuses to do so, on condition of anonymity. The policy of the legislator in this situation is based on maintaining the solidity of the contract, trying as much as possible to maintain the legal relationship, and it has considered several solutions to this end. Iranian religious jurists have explained in detail the title of the right to withhold performance in case law in one of the methods of obliging the obligor to coerce and Iranian civil law has stated in its provisions without specifying the title in various topics. On the other hand, the term of the right of suspension is based on the objection of non-performance in European law, and the French legislator emphasizes that the non-performance should be essential, but in Iranian law, the concept of essential non-performance is not defined. The right to withhold performance is a concept which derives particularly from Imamiah Jurisprudence and is fundamentally different from the right to suspension. The authors of this article attempt to analyze the concept of the right of suspension and objection to non-performance of obligations and to distinguish it from the right to withhold performance by an analytical-descriptive method and by using valid case law sources, legal works in Iranian law and taking into account recent reform of French law.

The increase in the strength of different enterprises due to economic developments in recent decades, has eliminated the equality in the bargaining power of the contracting parties specially in relationship between the bank and consumers, let alone consumer credit in our discussion, hence it caused an imbalance which is implied that the absolute reliance on the principle of contractual freedom and The Autonomy of Will or in other words in a manner that is strictly limited to the traditional rules of classical contract law does not necessarily entail Commutative justice in such contracts. in particular these contracts based on Article 23 of the Law on the Continued Improvement of the Business Environment are pre-prepared and offered to consumer without the possibility of altering. Thereupon to protect the "weaker party" along with using some common law doctrine such as "undue unfluence" and "unfairness doctrine" in order to cancel the contract or alter the contractual terms, which already there are some indications of utilization of those principles in our legal and regulatory system, The legislator can, by amending article 23 of the above mentioned law, prepare a flexible contractual situation for consumers in comparison with other banking customers, as the case may be.

In private contracts, the parties are required to comply with the imperative rules and the obligations arising from it; provided, of course, that it is not contrary to public order or good morals. In the event of a dispute, this legitimate freedom of the parties to conclude and execute the contract may be restricted by a court in favor of the other party to the contract. Also, according to the theory of reciprocal justice, which in the French law of obligations provides the necessary protection in cases of weak side of the contract, its traces can be traced in Iranian law, especially in the law of electronic commerce in weak side protection of the contract. In the face of the professional side of the contract observed. What inspires this research is the amendment of the French law of obligations, especially in explaining the rules of modification and interpretation of private contracts, which is a source for how to modify and interpret private contracts in the economic crisis caused by the outbreak of the Corona virus. By examining the statutory laws, especially the Iranian civil law, it can be pointed out that by using the internal legal tools; one can modify or interpret private contracts, in which justice or fairness to one party to the contract Disregarded. Sometimes Modification in a private contract, which is faced with difficulties or difficulties in fulfilling the obligation, tries to execute it with the created conditions.

Justice generally means to put everything in his suitable place for giving everybody his right. This definition is the junction point of all difinitions in all sciences and compliance with distributive justice and commutative justice and shows the legislator’s attitude in putting every things in his right place (in the domain of legislation), also shows law and judicial approach for giving every bodies right (In the realm of execution). In this sense contractual justice means combination of this two kind of justice and lead to the mixture of public intrests and individual intrests and provids backgrounds to order and contractual. In french law, combination of justice and security is via prohibition of abuse if right and lead to contractual justice, in common law obligation to observe good faith and not disclosing information and observe the rule of fairness and prohibition of omposed condition lead to contractual justice. Iranian law existence of the rule of La zarar and excellence of it to domination rule and also Taghlib which means that public interests are more important than individual interests implemented as distributive justice and is enough for supervision of government. If the parties agreement breach this regulations, about the public intrests the La zarar and Taghlib will govern the contract and if the agreement breachs the individual intrests wich is because of power of one party, La zarar rule avoid losses and organizing contractual justice.

The Utility is main element of the exchange value in a contract. The measure of this value, is satisfaction of a situation arising from the balance resulting from the implementation of their obligations and preferences based on the other party. Balance in value of consideration, ownership to ownership, delivery to delivery and balance of rights and obligations of the parties in the commutative contract based on utility, it would result in commutative justice. The two ideals of " Self- Legislation ", namely the emergence of free and informed will and "Reciprocity" to the benefit of mutual benefit will be realized in moral contract. Measurement of commutative justice based on utility by personal criteria and attention to individual identity is more appropriate, because of his co-ordination and his perceptible relationship with the act of committing himself and his rational choice. Adjusting of contract in line with the fulfillment of contractual preference, is a means to restoration of distorted commutative justice. Efficient breach with efficiency criteria of Pareto or Kaldor- Hicks, depends on establish the commutative justice with the view of the party concerned about the utility of the breach of the obligation.

Severe fluctuations in prices can cause a distortion of the balance of considerations, particularly in long-term contracts, such as construction contracts. One way to reasonably reduce the risk of unforeseen costs due to price fluctuations in raw materials and manpower is to design a contract price adjustment system. Since Iranian law is substantially influenced by the state economy, large-scale economic activities are carried out directly by the state. In general contracts, based on Article 23 of the Program and Budget Act, the general terms of contracts are the basis for drafting governmental contracts of which the standard model is FIDIC contracts. In general contracts in Iran, the government, as a regulatory body, has a direct involvement in the implementation of this type of contracts. Hence, the analysis of the nature and basis of moderation in the general terms of contract is subject to controversy. This article strives to examine the nature and basis of the moderation clause in general terms of the contract and to compare it with FIDIC contracts.

Securities transactions, like any other transactions, are primarily subject to contract law; however because, of government intervention in trading, these securities, by passing special legal regime called “securities regulations”,can not be considered as a subject of pure private law any longer (corrective justice) as they are also now in a sense under public law (distributive justice).
If we consider that conflict rules are only applied in private law cases and their application in public law cases has been, generally, prevented by legislators, a challenge for private international law is inevitable in cases that securities transactions place in the field of public law. So, if the court describes the case as a matter of private law, conflict rules can be applied, but if the judge describes the case as a matter of a public law, applying conflict rules is not permitted, and the courts usually apply their own countries, legal regimes.
In this article, we initially try to shed light on different legal regimes to the extent, which is related to the securities law including property law, contract law and securities regulations. Then we study the possibility of applying conflict rules in each legal regime.

Commutative justice means rule of will, prohibition of State’s intervention in private contracts and considering the contents of every kind of agreement as being fair. Parties of a contract are the best judges for their own interests and their decisions are legal and binding. ‘Commutative justice’ has no history in Imami jurisprudence; in the jurisprudence of contracts, however, jurists have accepted the wills of the contracting parties as the main basis of obligations under some conditions.If jurists’ works are studied and ‘proofs’ such as rules of taslit and conditions for veracity and prohibition of conversion are taken into account, at the first look, it may be found that Imami jurisprudence inclines to accept commutative justice. But, if proofs and rules such as the rule of‘no harm’, prohibition of usury transactions, the principle of equity, and public guardianship are considered, the result will be different and according to which many addenda to contracts (if they include, because of monopoly of one party and urgent conditions of other party, strange and unfair terms) are not according to Imami jurisprudent legally forcible.

Commutative justice, in the philosophy of law, means giving the exact amount of everybody’s rights and achieves without interference, and distributive justice is concerned to distribution of property by state. Commutative justice theory, from a more practical perspective, means the necessity of balancing the parties’ rights in bilateral contracts and if it is blemished, it should be compensated by other legal principles. In Iran’s law, this theory is justified by arguments like rule of “waste of the object of sale before its receipt” and legal options. Whereas this theory is rejected, balancing the parties’ rights in bilateral contract will be broken.