جستجوی مقالات مرتبط با کلیدواژه "compensation for damages" در نشریات گروه "فقه و حقوق"

Legal scholars and practitioners in commercial law concur on the social and economic changes of today's world and the misalignment of Iran's commercial laws with these changes. The necessity for updating and amending commercial law is evident. However, given the significance of this law in the country's economic framework, there is a need for meticulous consideration in its legislation. In this context, it is essential to analyze the Commercial Bill approved by the Islamic Consultative Assembly prior to its potential ratification by the Guardian Council. This study seeks to answer the question of how the innovations introduced by the Commercial Bill will impact the general contract rules within the Iranian legal system. The initial hypothesis posits that while some of these innovations will enhance the legal framework, they may also pose new legal challenges in certain areas. Therefore, this research employs a descriptive-analytical method to examine these innovations and analyze their effects on general contract rules in two phases: before and after the conclusion of contracts. The findings indicate that certain innovations, such as the broad allowance for the agreement to apply foreign law and the granting of authority to third parties to determine the transaction amount, will create difficulties, as they are not well-aligned with the existing legal structure. Additionally, granting third parties the authority to determine the transaction amount when the criteria established by the contracting parties are not enforceable will also lead to practical and legal problems within society. Conversely, the Commercial Bill, by adopting the theory of accession, has specifically improved conditions in electronic contracts, and provisions such as the possibility of amending non-standard contracts or preemptive termination are regarded as positive movements. Therefore, despite the presence of some positive reforms, challenges remain, highlighting the necessity for a more precise examination and amendment of this bill.

The practice of witnesses recanting their testimony is widespread in societies, particularly in financial, criminal, and family lawsuits. Witness recantation in each of these legal contexts involves various assumptions and scenarios, each carrying its own set of rules, conditions, and consequences. This research delves into the cases of witness recantation and its associated rulings and consequences in Imamiyeh and Hanafi jurisprudence through a comparative lens. The exploration aims to highlight both the commonalities and differences between these two religious perspectives, fostering convergence and rectifying biased preconceptions. In many instances, the opinions of jurists from both religions align, such as the lack of witness responsibility in recanting testimony before a verdict is issued in financial, criminal, and family cases. However, subtle differences exist. For instance, Hanafi jurisprudence categorically deems witnesses as guarantors for compensation in cases of murder or dismemberment. In contrast, Imamiyeh jurisprudence holds witnesses accountable for compensation if they provide false testimony due to an error, while intentional false testimony warrants retaliation upon the request of the victim's family. This article explores additional points of convergence and divergence between these two legal traditions.

Iran’s legal system is highly influenced by Imāmī jurisprudence in many areas. Regarding civil responsibility, the rich capacity of jurisprudence related to principles of guaranteeing covers various types of common civil responsibilities, including contractual liability. The principle of Tasbīb (Causation) is the most fitting principle that can serve as the basis for the necessity of compensating damages resulting from contractual breach. The mechanisms of Article 221 of the Civil Code and some jurists’ endeavors to establish a separate system for contractual liability is subject to criticism. Utilizing jurisprudential capacities neutralizes any ground for separating the various types of liability, and eventually enables the possibility of referring to the Tasbīb Principle in contractual liability based on some jurisprudential views. Additionally, it necessitates the need for reconsidering existing rules and establishing a common system to replace the scattered and inconsistent laws regarding liability, such as some Articles in the Civil Code or the Law of Civil Liability 1399, some provisions of the Civil and Criminal Procedural Law, and the Islamic Penal Code.

Compensating for material and moral damages to the affected individual and restoring them requires a solution known as civil liability. Civil liability is a legal relationship that entails one person's obligation to compensate for damages caused to another. Immunity and, consequently, impunity may lead to individuals tolerating the violation of each other's rights, resulting in harm. Judges, like other individuals, are prone to errors, and it is not unthinkable that they may negligently or even maliciously, misuse their discretionary power, causing harm to the rights of the parties involved. The error of a judge is of double importance as it may jeopardize the lives, property, and reputation of individuals. Therefore, it is essential to take measures to compensate for the damages inflicted on individuals. Legislators, in consideration of the principle of equality before the law and to enhance democracy, have brought judicial liability into focus, gradually moving from absolute immunity towards civil liability, as the responsibility of judges was previously overlooked in the pursuit of the principle of absolute immunity. In this research, after clarifying the concept of civil liability and its foundations, we delve into a comparative study of judicial civil liability in Iran, France, and the United States.

In the realm of civil procedures, the right to bring a lawsuit traditionally hinges upon the claim of the injured party seeking compensation for harm caused by the actions of the defendant. According to this conventional perspective, the initiation of a lawsuit by a third party, without the consent of the injured party, has been deemed inconceivable and lacking legal rationale. This article challenges the fundamentals of this prevailing approach, demonstrating that in specific cases where the beneficiary faces difficulties or is unwilling to engage in legal proceedings, the involvement of a third party as the instigator of the claim can be legally justifiable and desirable. This alternative perspective calls for a reevaluation of existing laws and regulations regarding third-party claims, ultimately enhancing the societal function of liability law and facilitating access to legal procedures for resolving disputes. In addition to addressing the issues and ambiguities associated with this approach, the article also explores potential challenges and solutions for resolving them. In some legal systems, formalizing third-party claims can enhance the effectiveness of the legal framework, better protect citizens, and establish behavioral norms within society. When determining the responsible party in civil liability claims, legal rules have undergone significant changes, resulting in multiple criteria and interpretations for assessing the scope of an individual's responsibility for  harmful actions. Today, causation is not solely based on identifying the closest cause, and individuals may consider themselves defendants if they can demonstrate a more reasonable position in preventing harm. Furthermore, the pursuit of damages against individuals with financial advantages or superior risk management capabilities has been defended. Conversely, the criteria for identifying the plaintiff have been less contentious. Despite minimal legal debate regarding the concept of loss and its sustainable forms, civil procedures universally emphasize the requirement of the injured party to initiate a claim. The only accepted basis for determining the plaintiff is that the individual suffered harm due to the defendant's injurious act. The intersection of civil procedures and civil liability is where third-party lawsuits for compensation come into play. Traditionally, the purpose of civil procedures has been to facilitate the compensation of damages through the law of liability, with the injured party serving as the initiator of the legal process and claimant for compensation. Consequently, the initiation of a claim for compensation by a third party has lacked legal rationale and practical viability. However, a reinterpretation of the essentials acknowledges the victim's desire to file a lawsuit. This approach revitalizes the societal role of law and recognizes that, beyond individual-centered aspects of proceedings, third parties may bring claims if the failure of the injured party to do so disrupts social order. Such an approach can deter reckless behavior and the violation of societal norms. While the criterion for identifying the claimant remains fundamental in litigation, it acquires a broader interpretation. Claimant status is extended to any individual who, by informing the legal framework about the occurrence of harm, requests legal proceedings and the sanctioning of the injuring party. Implementing this approach, which offers numerous advantages, necessitates legislative amendments to regulate its use. Based on the arguments presented, it is recommended that legal reforms clarify that the primary rule for seeking compensation is for the injured party to initiate the action. However, if a third party initiates the action, and after verifying the accuracy of the information provided, the court hears the claim by notifying the injured party. Upon confirming the claim's validity, a portion of the compensation will be awarded to the third party. If the victim declines to accept the remainder, it can be allocated to a fund aimed at reducing similar losses in the future. This article explores the possibility of third-party claims for damages as an exceptional and conditional approach with legal advantages. Key questions addressed in this article include the justification of third-party lawsuits based on general principles and rules, their advantages and disadvantages, their validity within Iran's legal system, and potential solutions for harnessing their benefits while mitigating their drawbacks.

Banks, whether public or private, as one of the most important economic organisations by mobilisation of financial resources through taking deposits and with the intention of making profits make investments and give loans to their customers. The expansion of economic relations and the needs of the people to banks requires a carful investigation of the legal nature of banks’ relationship with their customers whether legal or natural persons or otherwise. In the past, the banking was simple and elementary. In such an environment in the case of emergence of any problem or issue and in case of causing damages to banks’ customers, it was easy to identify the cause of the damage as the banks and their customers were in interaction in person and their relationship was not complex and extensive as they are now. Nowadays, given the technological advances and the advent of electronic communications has led the banks to utilise these technologies and provide new services via new methods to their customers. The use of such new technologies has led to new complexities between banks and their customers. Given such complex relations, it is possible that customers suffer some damages and they seek compensation.  Depending on whether such damages are could come under a contractual relations or be based on a tort, the method of compensation varies. Banking contracts such as  interest free loans, Joaleh, Mozarbeh as example of a contractual relationship between banks and their customers. However, the legal basis of the contractual and non-contractual liability of the of banks vis-à-vis their customers could be found in in the general and special legislations such as Articles 11 and 12 of the Civil Liability Act and also Article 35 of the Monetary and Banking Act according to which “each bank is liable to compensate the damages which has been caused to their customers  due to the banking operations of the bank”. Based on the prima facie understating of this Article, there is no need to established the a bank’s fault and only the relationship between the damages caused to the customer and the bank’s activity is enough. There are a number of legal vacuums and defects in the relationship between banks and their customers. Nowadays such deficiencies and failures in the banking sector do exist. Therefore, taking into account general legal rules and principles of civil liability, no damages should be left without compensation. The banking deposit should also follow the same route.

Adoption of some political or economic procedures of the government sometimes causes the devaluation of money and consequently inflation, and therefore different groups of society due to this wrong and ill-considered behavior of the government, also due to devaluation of financial assets and purchasing power, suffer great losses. They returned. What has been seriously debated and debated is the government's responsibility to compensate for the loss of value of money. Which should be considered by researchers.

This research has been organized using content analysis method and library (documentary) study.

Ethical considerations:

 In all stages of writing the present study, while respecting the originality of the texts, honesty and trustworthiness have been observed.

indicate that the government by actions such as printing banknotes without accurate or unsupported expertise or by creating political disputes and inciting political strife and incitement. , Causes economic problems and consequently devaluation of money and damage to people, is a guarantor and must compensate for the damage. Government guarantee and liability for damages arising from harmful actions and decisions [in addition to using the principles and arguments governing the guarantee of natural persons and extending it to the state guarantee to compensate for damages resulting from the devaluation of money] according to rules such as the rule of justice, rule of law Muslim, the maintenance of economic security and public order has been proven as general evidence and rules such as waste, harmlessness and proportion in the number of specific evidences.

Examination of the opinions of great jurists and criticism of the arguments presented in the impermissibility of retaliation for the devaluation of money and the necessary attention to the narrated arguments and jurisprudential rules show that the responsibility of the ruling system and the principle of the need to compensate the damages caused by the ruling system It has also been declared necessary

An authenticated and unauthorized funds transfer is one of the most important risks in electronic banking.
When an authenticated and unauthorized payment instruction is issued and the bank has no knowledge of the instruction being unauthorized, if that payment instruction has been recognized and confirmed in accordance with security procedures agreed upon with customer, the bank considers the instruction to be authentic and transfer the funds. Under such circumstances, does the bank or another person bear the civil liability and Zaman?
Depending on the payment method used for issuance of the payment instruction and whether the issuance of such instruction was due to the customer's fault or the bank's or neither, Zaman and liability for damages lies with the bank or the customer or both.
This article reviews the concepts of authenticated and unauthorized payments, various categories of payment instructions based on authorization and authenticity, the legal basis of civil liability and consequences of breach of duty under the Iranian law and the U.C.C. The authors believe in the case of authenticated and unauthorized payments, in principle when the customer has proven the unauthorized characteristic of the transfer, the bank shall bear the risk, unless it proves the customer’s fault.

The standard of compensation of damages has an important role in the evaluation of damages and its remedy in the field of international capital investment contracts. An important question in the case of the breach of international obligations or breach of contracts from the part of country in which the investment is done, is whether it should pay the damages thoroughly or partially? In another word, for the evaluation of the damages there are two methods. One is that the foreign country should be supposed in the situation that the contract was not broken and the benefit which would be obtained is counted. The other way is that only the losses that really it faces is regarded? Up to now, courts of arbitration have not accepted a single standard to asses the losses and many accepted the
same norm which is the standard to evaluate the damages in the case of dispossession. That is in the case of breach of the investment obligations perfect compensation and in the case of breach of the investment contract partial one should be done. It looks as if Muslim Jurists mainly accepted payment of partial damages.

It is unjust to absolutely accept or deny criminal’s responsibility for damages following a murder or injury. Therefore, cases should be distinguished according to the relationship between damages and thebodily harm. The criminal may be responsible for damages occurring besides and independent of the injury. This is also the case when damages are caused indirectly by the injury, since there are multiple subjects to losses. This is so even when damages are equal to bloodwit or more. But if the crime is only a condition for the damage to take effect and also if the crime is associated with damage, the criminal is not responsible for damages and may only be sentenced to retaliation (Qisas) and bloodwit (Diya).

If the main objective of the rules of civil liability is compensation of material and spiritual damages, the state and the civil servants would not be an exception to the rule. It is possible that granting immunity to the state gives rise to imposition of certain material or spiritual losses to natural as well as legal persons. Is compensation of the losses imposed in these cases or drawing their consent as far as possible obligatory on the state? In case this compensation is necessary, is it the obligation of the political system and the public treasury, or it is the obligation of the state or the civil servant? The present article first defines the concepts related to the topic, and then discusses the foundations of civil liability and those of the liability or immunity of the state and the civil servants according to the Iranian law and the Shiite jurisprudence.