جستجوی مقالات مرتبط با کلیدواژه « bill of exchange » در نشریات گروه « فقه و حقوق »

Acomparative study in Iranian and French law has been investigated and reviewed in this article around the contract of assignment and the necessity of drawee (Arabic: محال علیه, assignee)’s consent in order to use the results of the discussion to prepare the general theory of cession of debt and seeking in Shīʿa jurisprudence. The question is, who are the parties to the contract of a bill of exchange and whether it is necessary to obtain the consent of the drawee for the conclusion or effect of the contract of the bill of exchange? Moreover, is it possible to deduce the institution of transfer of religion and cession of debt and novation of debt in a direct manner from this discussion in Shīʿa jurisprudence and civil law and is it possible to analyze the second and third paragraphs of Article 292 Civil Code based on it? We came to the conclusion by a descriptive-analytical research method and by studying jurisprudence texts and legal doctrine that the stronger opinion in Shīʿa jurisprudence and Iranian law is that the consent of drawee (assignee) is necessary for the occurrence of the bill of exchange and he/she is considered as a party to the contract and the death or incapacity (Arabic: حجر) of each of drawer (Arabic: محیل, assignor) or creditor (Arabic: محتال, beneficiary of a draft) or drawee (Arabic: محال علیه, assignee) between offer (Arabic: إیجاب) and the last acceptance (Arabic: قبول) causes the extinction of the validity of the agreement (Arabic: تراضی, mutual consent). In addition, among the rules of bill of exchange and issues which are discussed in jurisprudential texts and civil law can accept the validity of cession of debt and novation directly in Shīʿa jurisprudence and Iranian law. Thus, contrary to what was common in Roman law and old French law, the “active deb” (claim), like tangible assets can be transferred to another even without the consent of the debtor. Also, unlike Roman Law and Old and New French Law (before the 2016 and 2018 reforms), “debt” is separate from obligor and the debtor can transfer the debt to a third party with creditor’s consent by materializing this constructive being which has long been accepted in Shīʿa jurisprudence and finally recognized it after centuries of disagreement and doubt in 2016.

The purpose of this study was to investigate the legal nature of the obligation of the issuer and endorser in front of the holder of the bill of exchange. The design of the descriptive research was descriptive-analytical. The purpose of this research is to explain the legal nature of the obligation of the issuer and endorser to the holder of the bill of exchange and its effects in commercial law and to clarify the ambiguities and inadequacies in Iran's commercial laws regarding the use of these documents. Validation and effectiveness of these documents in internal commercial exchanges based on Iran's trade law and Iran's trade law are among the goals pursued in this research. In order for a commercial document to be able to realize the two principles of speed and accuracy in commercial transactions, it is necessary to have certain attributes and characteristics and to be transformed from a paper form as a means of proof (like official and normal documents) into a movable and immaterial property and independent of Basic transactions and relationships should be valid. Therefore, there is no doubt in the demand for credit reflected in the sheet, and as a result, speed in business is ensured.

If bill of exchange or cheque was not accepted by the drawee, holder of that bills could resource to other liable parties or that want to take a guarantee before maturity. Acceptance by the third party is a method to avoid holder’s resource to issuer and endorser before maturity. This action can be done partially or wholly. This acceptance can be done after having done a protest for non-acceptance. Considering the legal nature of acceptance for honor based on the doctrine of offer faces with this important issue that it cannnot cover all types of this act. The Benevolent intervention in another doctrine that is a far argument and thus cannot cover all types of the act. The same problem exists on the agency doctrine. Instead of these doctrines, unilateral obligation doctrine ignores one of the involved willingness's in creating that act. Based on guaranty contract doctrine not only we cannot open any door but also it creates new problem. Moreover, this doctrine is contradiction with interpretation of parties' willingness. It is, therefore a special legal action that involves bill of exchange obligation and arises rights and responsibilities.

In spite of Most, if not all the scholars believe that it is impossible to incorporate the clause for contract effect into the commercial instruments. Commercial law has not emphasized to being unconditional of all legal actions related to commercial instruments. Iranian national Law should be considered in order to articulate unconditional nature of the above mentioned actions and their scope Implicit terms of the commercial instruments in the Iranian Law have been reflected in articles 3 and 23 the cheque act and article 233 of the commercial code. In accordance with article 276 of the Iranian Commercial Code, the clause for contract effect suspension has been allowed in endorsement absolutely, such as guarantees of the bill of exchange. No rule has been laid down as to whether or not it is possible to suspend the dissolution of the legal actions related to the commercial instruments, the commercial code and the cheque act. The Key question is: What is the status of unconditional nature of the commercial instrument in Iranian law, and whether or not the effects or dissolution of all legal actions related to the dissolution of all legal actions related to the commercial instrument is seriously suspended except acceptance of the bill of exchange. The effects issuance of the bill of exchange contracts and promissory notes and endorsement contract and guarantee in all three commercial instrument may be suspended by the parties.

The legislature, for the purpose of commercial documents and their increased use by individuals, has provided different privileges. Some of these privileges is applicable commonly to the bills of exchange, promissory notes and cheques. However, the other part has been assigned only to this commercial document as the special privileges of checks. There are some special privileges for cheque. It is necessary to mention that cheque contributes to commercial transactions as a substitute for promissory note. The bill of exchange has been removed from the internal commercial arena. This paper intends to scrutinize the contexts for substituting the cheque in place of the other commercial documents by investigating the common privileges of commercial documents in addition to the special privileges of cheque.

Although the letter of credit is known as evolved version of bill of exchange and like bill of exchange and promissory note and check, it is a means of payment for goods and services and an instrument for fulfillment of the obligation (payment of the debt) arising out of underlying agreement, no reliable comparative study of common aspects and differences of letter of credit and negotiable instruments are seen. This article aims to compare letter of credit to bill of exchange and other similar instruments regarding the applicable legal regime, legal nature and characteristics and peculiarities of the obligation/s reflected in the said documents.

One of discussions about bill of exchange is whether its consideration (provision Fr.), that is the money which is or will be payable in a due date, is transferred to its holder. Acceptance or rejection of the transfer of consideration has many important consequences. There are various theories about the question among Iranian as well as other lawyers. Due to the similarities between the commercial institution of bill of exchange and the contract of havalah (assignment) in Islamic law, the article seeks to consider the question of the transfer of consideration in the Shiite jurisprudence, and to analyze the jurisprudential nature of bill of exchange and its consideration. As will be seen, the answer is deferent with reference to various forms of bill of exchange and its consideration.