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

Today, in many contracts, the contractual obligee seeks help of a third party to fulfill all or part of his obligation. The question that is raised here is that when the obligee to the contract seeks help of another person to fulfill the obligation, what is the responsibility of the obligee to the initial contract as a result of the claim of damage by a third party? As a basic rule, the claim of damage by a third party will not create responsibility for the obligee unless the responsibility is explicitly or implicitly stipulated on the obligee. A part of this article reviews the narrative of Zorarah and Abi Basir regarding the issue. By taking the criteria from this narrative, it can be concluded that the contractual obligee is responsible for the damage sustained by the first obligee caused by the third party due to the implied condition of guaranteeing the damage.

Economic law has a different view on the issue of contractual liability, so that from the point of view of economic law, the goal is not to establish rules for compensation and punishment of the violator of the contract, but to compensate for the damage suffered. This view made the contract optional, which means that there is a free choice between paying damages and performing the same obligation. Based on economic analysis, fulfilling contractual obligations in creating a contractual relationship are not only objective, but this type of contract is seen as a function of efficiency and usefulness. Therefore, the present research seeks to investigate There are methods in contractual responsibility that can bring this category to the level of desirability. The result of this attitude will be that in every contract, the obligee can violate the contract and pay for its damages, but those who think it is beneficial to include more moral principles in contract law, do not agree with this point of view

Today, the use of blockchain technology and cryptocurrencies in commercial transactions has raised many legal challenges, and in our country, despite the fact that the mining of cryptocurrencies is permitted by the approval of the Cabinet of Ministers, with the permission of the relevant authorities, an explicit position regarding cryptocurrencies has not yet been taken. Therefore, it seems necessary to identify the contacts and contracts of cryptocurrencies and subsequently formulate appropriate laws. Unlike tax laws, where the obligations and responsibilities of a person who receives cryptocurrencies or profits from transactions with cryptocurrencies are covered by specific laws in many states, in the discussion of civil liability in the field of cryptocurrency relations, there are many contradictions, ambiguities and confusions due to the newness of this The phenomenon is observed.According to the investigation of the nature of smart contracts, cloud mining contracts and the analysis of numerous consumer agreements provided by service providers in the space of cryptocurrencies, the results of this research show that the default rules regarding contractual responsibility in contractual relationships are appropriate and unique in nature. And the complexity of cryptocurrencies whose contract is discussed should not be important for the applicability of civil laws regarding validity, binding and liability issues in cases of violations. In the field of consumer protection, data privacy protection and investor protection law, favorable laws should be enacted.

When the parties enter into agreements in the contract, the obligations arise and the agreements may not be implemented as expected by the parties, in which case there are damages from breach of contract. Compensation requires determining the extent of compensable damages, foreseeability of damage is a criterion for determining the extent of damages. In Iranian law, influenced by fiqh sources, there are two sources for determining the liability: usurpation and opposability, damages resulting from a breach of contract are not separate from the opposability, The relationship of legal causality, which requires a proportionality between damages and breach of contract, which justifies by foreseeability of damage. This kind of approach is contrary to the originality of the contractual liability, which considers the provisions of the contract time as a criterion for determining the extent of damages. There is no provision in Iranian law that determines certain characteristics for the ability to predict damage in contract law. In French and English law, the contractual responsibility is predicted and in French civil law and the English judicial procedure explicitly the time of the contract is unique unless it has a deliberate intention to violate its obligations.

The law of contracts is an important part of any legal system. A major challenge in this regard is how sanctions are determined in the event of the breach of a contract. Consistent with a set of pre-determined goals, all legal systems have made certain rules for the breach of contractual obligations. In the law of the United States, a strict liability system governs in terms of preservation of a contract as well as compensations for the damages of a contract breach. Nevertheless, drawing on the different aspects of the consequences of this liability, researchers have developed new perspectives on the fault-based enforcement of liability in recent decades. The Iranian Law, rooted in the Islamic jurisprudence (the Fiqh), limits the claim for contractual damages circumstantially to the affirmation of parties, customary law, or civil laws due to the differing opinions of Islamic jurists (the Foqahā) on the issue. Following the aims of the laws of civil liability in fully compensating for the damages incurred to contract parties, the loss can be estimated according to its attributability to the offending obligator. Use was made of the descriptive, analytical, and comparative methods in carrying out the present study.

There is a disagreement between lawyers in Iranian and American law with respect to conditionality or preventiveness of fault in contract liability. Therefore, the question is raised whether fault basically contributes to contract liability or not? Those who believe in preventiveness of fault state that since there is no reference to fault in Iranian law, thus the obligor is liable as soon as he fails to fulfil the obligation and some American lawyers state that a contract is a choice between obligation fulfillment and damage payment; therefore they conclude that fault has no place in contracts and is considered as a "preventive factor". However, it seems that fault has a conditional state because its contribution to contract liability prevents contract breaches, creates a fair relationship between the parties and encourages confronting damages to increase benefits for both parties to the contract. The aim of present comparative study is to analyze conditionality or preventiveness of fault together with analysis of related opinions using a descriptive-analytical methodology and the main research question is that whether fault in contract law is a condition to creation of contract liability or prevent it? The hypothesis of present study argues for conditionality of fault and its multiple consequences.

In this article, the conditions and effects of the force majeure in the amendments to the French Civil Code adopted in 2016, in order to use the solutions of the French legislature to eliminate the shortcomings of the Iranian legal system have been studied by descriptive-analytical research method. The main question is what are the conditions and characteristics of the force majeure and what is the criterion for distinguishing them, either personal or relative, and what effect does force majeure have on contracts, contractual obligations and contractual liability? A comparative study of Iranian and French law shows that the inevitability (impossibility of eliminating and repelling the accident) and the unpredictability of the accident, with a kind of relative criterion, and also the impossibility of executing the contract, with an objective criterion, are conditions for the realization of force majeure; But the externality of the accident is not an independent condition and refers to the same impossibility of preventing the accident (not being avoidable). Also, contrary to French law, the Iranian legislature did not anticipate the effects of the force majeure on the contract itself and the contractual obligations, and the effect of force majeure on contractual liability was also incompletely stated, which has led to differences between judicial decisions. Therefore, it is suggested that the legislator, in the form of a Civil Act amendment plan, in Article 227 stipulates the conditions for the realization (characteristics and criteria of distinction) of force majeure and in Article 229, the effects of force majeure on the contract and contractual obligations and compensation for non-implementation or Specify the delay in fulfilling the obligation.

Contractual liability in the strict sense of the word is the obligation to compensate for damages arised from breach of contract. The main question is about the nature and basis of this obligation. Shall we consider it as a form of compliance of the contract; meaning that promisor has to give the equivalent of the contract to aggrieved party and perform the contract indirectly; or shall it be considered a separate nature of the contract and as a compensation which is imposed by the law? In the past, western legal systems; specially in France, contended that the claim to compensate for damages is an alternative to the contractual obligation and presumed specific performance. But this view changed, so today, contractual liability like non-contractual liability is considered as a compensatory function, and its basis is considered to be in breach of the contractual obligation so it is separated from the main obligation of the contract. This different view leads to different effects; particularly it denies the the distinction between contractual and non-contractual liability and causes the unification of civil liability. This view corresponds to Islamic law rudiments. It seems that in the Iranian legal system- emanating from Islamic Law, both contractual and non-contractual liability have a same nature and subsequently there is no duality in civil liability. In the present study, we have tried to examine this issue in the Islamic and French law. An interpretion of Article 221 of Civil Code concludes our perspective on Iranian law.

Duty to rescue is imposing the affirmative duty to take an action and save others from a harmful situation, even if there is no role in creating the situation. In contractual relations, if the continuation of such a situation leads to breach of the contract, the abstainer will also be liable for. This article tries to examine the conditions of the obligation and to find out what are the grounds for fulfilling the obligation to save and its effects on law, especially in contractual relations. In addition to explaining the justifications for the commitment to save, the compliance of the rule with the jurisprudential and legal rules of Iran will also be feasible. Based on the analysis presented in this article and the examples cited in Iranian legal texts, it can be accepted that the obligation to save in some contractual assumptions is applicable in Iranian law based on the customary reliance on the concept of fault and causation

Violation of contractual obligations is referred to as contractual liability, and in contractual liability, the harmful action is often in the form of omission, such as delay or non-fulfillment of the obligation or breach of execution. If as a result of the delay or non-implementation of the contract and the breach of the contract by one party, the other party suffers damage, the violator must compensate it. This issue has been considered not only in domestic regulations but also in the International Sale of Goods Convention. Based on this, in this article, we will investigate what the meaning and concept of damages for delay in the implementation of contractual obligations is, and what position does it have in Iran's legal system and the Convention on the International Sale of Goods?

The present research was carried out with a descriptive-analytical method.

If the breach of contract caused by the non-fulfillment of the obligation or the delay in the fulfillment of the obligation by one of the parties to the contract causes damage to the other party, he has the right to claim and compensate for the damage. This right to demand damages is separate from other compensation methods such as forced execution and termination of the contract. Regarding the conditions of damages for delay in the implementation of contractual obligations in Iranian law, attention is paid to such things as proof of fault, foreseeability and establishing the relationship of causation. From the point of view of the Convention on the International Sale of Goods and the principles of international commercial contracts, the purpose of compensation is to put the injured party in the position of performing the contract, and on this basis, the "theory of full compensation" has been accepted, according to which, the injured party, in addition to the losses incurred, He can also claim any benefits he is deprived of.

One of the effects of an apology is the obligatory exemption from contractual liability. In many transactions, the obligee may be exempt from damages for non-performance or delay in performance of the obligation, citing excuse. The reason for this ruling is the lack of causal relationship between non-performance of the obligation and the obligated act, because its existence is necessary to fulfill the contractual responsibility, and the occurrence of an excuse with its conditions causes the termination of the causal relationship. Of course, in some cases, due to obstacles, although the reason for the excuse can not be attributed to the obligee, the obligee still has contractual responsibility. This paper seeks to analyze the above conditions and obstacles with a comparative view of Islamic jurisprudence as one of the important sources of Iranian law and using descriptive-analytical and inferential methods and to show precisely what criteria and criteria he is committed to proving. , Is no longer obliged to perform the contract and is exempted from contractual responsibility.

Today, with the advancement of technology and the growing need of communities for medical services, a huge amount of medical equipment and supplies are produced and made available to physicians and patients for use. Manufacturers and specialists always seek to provide the best and most standard medical products and equipment; nevertheless, the possibility of providing defective medical supplies and equipment is one of the undeniable issues. The use of defective equipment and supplies in some cases causes irreparable financial and physical damage to the final consumer and raises the question of to what extent the manufacturer or importer of such equipment will be responsible for compensation. In the European Union and in intra-continental law, the manufacturer and supplier of defective medical equipment have been explicitly held liable for damages resulting from the defects of the goods, and the injured party has been exempted from proving guilt in this regard. In Iranian law, the relevant laws are not specified in this regard. The Consumer Protection Act has not changed the basis of liability, but the Code of Conduct for Medical Equipment, based on developments in foreign law, provides for fault-free liability for manufacturers and importers of defective medical equipment. In this research, which has been done by the library method, we seek to investigate the principles and effects of creating liability without fault for the manufacturer and supplier of defective medical equipment.

The possibility of concluding substitute contracts as remedy by the obligees is considered a controversial effect of the breach of contracts. According to this method, the contractual beneficiary is able to conclude a similar contract with a third party without the obligation to enforce the obligator to implement the contract. Due to the substitute contract, the obligee does not miss the opportunity to enter the market and will not incur losses from price fluctuations or the suspension of his property. However, according to the traditional approach in contract law, breach of contract and non-observance of the provisions of contracts is not a reason to ignore the contractual obligation. In other words, replacement and termination of the contract is allowed only if the enforcement of contract is not possible. Meanwhile, it is not possible to ignore a valid contract and its effects except as specified by law, while in legal texts or laws of Iran, concluding an alternative contract cannot be recognized as a general rule for remedy.On the other hand, based on legal basics, it has been stated that substitute contract in certain circumstances can be a method of compensation and provide the best way to ensure the performance of contract. This is a punitive compensation of breach of contract and should be recognized based on the benefits of the damaged party. To restrict the methods of compensation means the ignoring practical facts and the effects of breaches of contractual obligations, which is also incompatible with the principles of contract law.  This article tries to answer the question of whether the use of an alternative contract to compensate can be considered a valid and approved method. In examining the above issue, other questions can be asked, such as what are the principles justifying an alternative contract in contract law? What are the necessary conditions? Can the use of substitute contract be applied to all contracts? What will be the compensation if the costs of concluding an alternative contract increase?Based on the studies conducted in this article, it is safe to say that concluding of substitute contract is a rational and desirable remedy that, in addition to complying with the principles of contract law, can create many benefits. The challenges of applying this method to law can be solved and justified, which is fully compatible with the development of interest-based analysis in contract law. It can be used in all financial contracts. However, it requires conditions that have reasonable bases and provide effectiveness. Therefore, it can be said that there is a basis for using this method in all contracts and agreements. The main justification argument used in this article is the adaptation of the alternative contract to the practical termination of the contract, which causes the injured party to terminate the contract after breaching. He explains his will to do so through the conclusion of the substitute contract.The article is an analytical-descriptive study and considers the legal sources of other countries in the position of examining the nature, basics and conditions of the substitute contract. The main purpose of the article is to assess the compatibility of using this method with the rules of Islamic jurisprudence and Iranian law. The existence of some scattered examples, along with compliance with the principles of Iranian contract law and jurisprudence, makes it possible to use an alternative contract. The prevalence of this method can, in addition to achieving economic efficiency, reduce the number of lawsuits related to breach of contractual obligations. Finally, the conformity of the substitution with the principle of contractual liability is another advantage of using this method as a compensation.

Determining the liability basis of professionals (such as doctors, lawyers and engeeniers), is one of the most important matters in different legal systems. The problem regarding determing the liability of these people is, on one hand, the differences exist between service providng and product manufacturing which makes it difficult to provide a general principle regarding civil liability for all of them. On the other hand, their clients, due to lack of science and skill, could not prove professionals’ fault.The social responsibility of these people, make determing the basis of their liability, more harsh.Although in both French and Common law legal systems, the main theory regarding the professionals’ liability is based on fault, there is some solutions to impose strict liability in some cases in order to protect their clients. Knowing this solutions and ocalizing them, will lead us to the general principle of professionals’ liability under Iranian legal system.In order to sloved the aforementioned problem in Iranian legal system and for the porpuse of balancing between professionals’ liability and social responsibility (mossion), in case service providing ends in goods manufacturing, such as architect and pharmesict, “Etlaf” and “Tasbib” shall be considered as the basis of the liability. In case of mere service providing, where there is a breach of an “obligation by result”, no- fault liability and where there is a breach of an “obligation by means”, fault base liability seems suitable. Any loss to third parties is included in the latter one.

Extra-contractual liability in its wide sense, is defined as the compensation of losses in the absent of a contract. Although different discussions have been carried out regarding this concept, there are considerable controversies in respect of definition, examples and unity or plurality of extra-contractual liability and contractual liability. It seems that these controversies are mostly the result of the lack of studying of the distinguishing criterion between these two kinds of liability. A criterion which can put an end to some controversies regarding the examples of these two kinds of liability as well as deciding about the new examples which might not be fully comprehensively studied. Although, different criterions can be extracted from existing studies, some critics show the necessity of proposing a specific and acceptable criterion. Some criterions can be distracted from current studies, but they would not prevent non related examples to enter into the scope of the extra-contractual liability. In other word, these criterions are too wide. On the other hand, the perspective about some notions which are used as the current criterions, are not correct. For instance, “contract” itself is considered as one of the criterions. It means that, whenever there is a contract, the liability which arises is contractual. Otherwise, it is considered non- contractual. In this criterion, contract is considered as a material instrument. In other word, the objective aspect of contract is important in this sense, which seems critical from our point of view. Therefore, in this thesis, “volition or will" is proposed as the element which can distinguish contractual and non- contractual liability. Despite the usual objective perspective towards volition and the contract sprang from it, this thesis focuses on the subjective aspect of the said notion. The result of considering volition as the criterion for determining the scope of the extra-contractual and contractual liability is that there might be some situations in which, despite the absence of contract, parties' volition exists. As the result, the liability of parties is considered contractual, although there is no contract between them. For example, the breach of some obligations such as confidentiality which may last even after the termination of a contract is contractual. This is because; the parties’ volition can be attributed to this obligation, although the objective contract between them is terminated. Moreover, sometimes in spite of the existence of the contract, parties' volition doesn't entail the required specifications and as a consequence, can't serve as the basis for the contractual liability. This result is true especially for implicit terms and conditions. These terms can join the contract and might serve as the basis of a contractual liability only if parties’ will is allocated to them therefore, in case of parties’ ignorance about a customary obligation (as an implicit obligation), its breach cannot cause contractual liability. From this perspective, this criterion shall include two specifications. Originality, as the first specification means that parties' will shall be genuine. Parties have to choose an obligation and its liability by their own genuine will. Therefore, imperative rules which are compulsory are not original and can’t serve as a trigger for contractual liability. They are legal obligations and their breach are resulted in non- contractual liability. On the other hand, volition refers to the obligations and commitments which are in line with the main purpose of the contract. This criterion which is also partible with respect to the implied terms and conditions, determines the scope of the said terms which are considered contractual. For instance, duty of care only enters into the contracts which their final purpose is care or something related to that, such as doctors or nurses or those whose duty is considered so critical to hem such as transport enterprises. According to the said criterion, the examples of different kinds of liability are divided into two groups; first, the examples which are not subject of lots of controversies and second, examples which are accompanied with a lot of dissidences. Moreover, providing a criterion which determines the scope of the extra-contractual liability leads to some consequences. Occurrence and proof of the said liability and the compensation of related loss are affected from this criterion and causes some differences between contractual and extra contractual liability.

The property which is offered for sale and possessed by buyer is terminologically called makhuz belsaum, the possessor is called akhez belsaum and the act is called akh belsaum. Delivery of property by the seller to the buyer may be considered either offer or promise to sell. The author in this paper seeks to answer the following question: what is the liability of the possessor of property with regard to property damage while in his possession? A group of jurists believe that he acts in a fiduciary capacity while the others consider him liable. Some jurists maintain that his liability is contractual while the others consider his liability as tort liability. The above said opinions have been studied through analytical-descriptive method and it has been concluded that the possessor is considered to be in a fiduciary capacity with regard to the property in his possession for testing and it is against legal logic and unjustifiable to consider liable a person who, by the owner's authorization possesses a property to test and verify and consider him as unauthorized possessor.

The economic exploitation of identity attributes, such as name, voice and image have become possible, especially for celebrities, and this consequently leads to the question about different ways of supporting the mentioned identity attributes. This article uses a descriptive, analytical, and comparative method to study this question in the law of the United States and Iran. The results of this study indicate that, based on the experiences of the United States legal system, contractual and non-contractual liabilities and intellectual property rights cannot fully protect such a right. Thus, over half of the United states recognized an independent right as the "publicity right" by law or Common law or both. In Iran, there is no law that expressly recognizes this right, and we can only resort to traditional solutions. Nevertheless, it is worthwhile to take protective provisions in this regard in Iran's law, using US experience in this matter.