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

There is no doubt that the right to access information is one of the most basic rights of every buyer. This doubles the necessity of the current research in relation to the examination of contracts in this field. The leading article was written with the aim of analyzing the effect of the principle of justice and good faith on the provision of information and warnings in contract law. Therefore, the obligation to provide necessary information is one of the traditional rights of every consumer based on the principle of justice and good faith, which is certainly considered one of the duties of the strong party of the contract. This research has been compiled by content analysis method and in a library form and by referring to the regulations. The results of the research indicate that there is no definition of good faith and contractual justice in the laws of Iran. Also, the lack of strict regulations on the advertising of goods can create many problems in the direction of protection from the weak side of the contract. After conducting the research, it is concluded that in commercial dealings and providing information and warnings about contractual substitutes, it is appropriate to accept the theory of pure responsibility in Iranian law and take a big step in promoting the rights of consumers and all-round compliance. Justice in contracts should be removed.

Nowadays, bank guarantees are used as one of the important tools in international and domestic trade. The present research examines the issue of referring claims arising from bank guarantees to arbitration.

This research is of a theoretical type and the research method is descriptive-analytical and the method of collecting information is library-based and was done by referring to documents, books and articles.

Ethical Considerations: 

In this research, the principles of trustworthiness, honesty, neutrality and originality of the work have been respected.

Referring claims arising from bank guarantees to arbitration can be used as an effective solution to resolve these disputes.

Faster speed, privacy, flexibility, expertise and contract enforcement are among the advantages that make arbitration an alternative method to resolve disputes arising from bank guarantees.

Nowadays divorce is in today`s societies, specifically in western countries, losing the negative viewpoint portraying as the dismantling force of family bonds, as it once had to face, and are showing tendency towards contractual dissolution of the said bonds. Parties tend to peacefully and as fast as possibly in reach, leave behind this period of their social and private lives and move forward. With the flow of multiple reforms through the years dating back to 2016, legislations to this day have tried to answer to some of the concerns regarding judicial divorce, elimination of the judge`s involvement in divorce procedures, stablishing divorce forms like divorce sans judge or divorce without judge, contractual interpretation of divorces etc. this article while glancing over these reforms and professing the historical events leading to and resulting from the said changes, craves for the weak points, side-effects, destructive aspects etc. to be highlighted and by specifying the strengths and offering comparative studies tries to answer to the all-important question of “would these reforms even dare to influence the current Iranian legal system in regards to divorce procedures in the right way? Considering the ever-rising rate of divorces (around the globe as in Iran), the destructive lingering effects of procedural delays, proper adoption of said reforms in order to put effective and influential suggestions forward, deems like never before necessary; Of course, respectful and true to the cultural, idealistic, licit and legitimate framework of the set boundaries of Iranian legal system.

Article 153 of the Constitution of the Islamic Republic of Iran, recognizing the bitter experience of the past, resulting from the conclusion of hegemonic treaties, has prohibited any contract that causes foreign domination of natural resources, economy, culture, etc. This Article seems to need to redefine the instances of contracts subject to domination because it can lead to misunderstandings. However, this paper seeks to redefine the instances of article 153 while defining "domination" and the scope of the concept of "alien", as well as answer the ambiguities in this field using an analytical-descriptive method, with library resources and opinions of the Guardian Council. This paper is based on the premise that the objectification of article 153 requires the relevant laws and its explanation and completion by the parliament, and the emptiness of ordinary law in defining the instances of article 153 makes the mentioned principle one of the suspended and silent articles. Therefore, the main finding of the present article is that the instances of the mentioned principle, including "other affairs of the country", can lead to misunderstandings and interpretations that can have profound effects on national interests.

The parties of the contract may agree on multi-tiered dispute resolution clauses. These clauses are usually negotiation, conciliation, mediation, or expert. The purpose of parties is to try to settle the disputes amicably before commencement of arbitration proceeding and avoid the costly process of arbitration, and strengthen their business-relationship. This article discusses about the validity, legal views about the nature of the multi-tiered dispute resolution clauses, its impact on jurisdiction of arbitration. There are three views about the nature of these clauses: Jurisdictional, Admissibility, Procedural. What the parties have stated in their contract indicates their intention. The nature of these clauses are closely linked to the parties’ intention at the time of their conclusion. The intent of the parties and the manner of arrangement of the clauses in the light of the applicable law, will determine the effect of these clauses on the jurisdiction of the arbitrator.

One of the issues of contract law is the presentation of criteria and effects of the division of contracts according to Imamieh and Iran's subject rights. Therefore, the main question of the research is what are the criteria and effects of the division of contracts in Imamieh jurisprudence and Iran's subject rights؟ The present research seeks to answer this main question and its related questions, so that, while examining the theories of jurists and lawyers in this regard, it can be a criterion consistent with Iranian law To divide the contracts headquarters from Imamieh jurisprudence and Iran's subject rights by analytical and citation method. The autonomous theory of research in the criteria and effects of the division of contracts headquarters is the integration of different criteria under the criteria of opposition and non-contradiction of contracts with the required rules and laws of the book and the age of comparison and its works.

The sudden increase in prices, along with the relative stability of incomes, has caused new problems for many Dowry debtors, which has created new problems for the country's judicial system; Because according to the current situation, many debtors who are unable to pay the installments of Dowry, have again claimed liens and requested adjustments, and this has led to the accumulation of many cases in the courts and the increase in the number of prisoners who owe Dowry; While from the perspective of Imamiyyah jurisprudence, imprisoning a Muslim who is unable to pay his debt due to poverty has absolutely no merit. This requires that the nature of the seal and its essential difference from other debts should be carefully examined by jurisprudence. However, according to Article 22 of the Family Support Law, if the amount of the dowry at the time of the marriage is one hundred and ten coins of the full spring of freedom or its equivalent, its collection is subject to the provisions of Article 3 of the Law on the Execution of Financial Convictions, and according to the prevailing judicial practice, the burden of proof of debt is on is even This is despite the fact that according to the capacity of Imami jurisprudence, it can be proved: firstly, the dowry religion is different from other debts due to the difference of the principle of the marriage contract with other status contracts; Secondly, the requirement of the spouse's ability to pay is also a very important point that can be used in Iranian law. In this article, in which the inference method is analytical-descriptive, we have tried to use the above items to help strengthen the family and provide solutions to solve the problem of dowry cases.

Due to social developments, possible contracts have many practical examples such as insurance contracts, pre-sale of artifacts, etc and are popular in the society. This contract is not defined in Iranian law and jurisprudence, and there is a difference of opinion regarding its nature and authenticity; Some jurists consider this type of transaction to be gratuitous and invalid, while others consider it to be a synonym of suspended contract, contract of chance, and forbearance contract. But this type of contract is accepted in English law and a contract that at least part of it is related to an emergency or possible situation. The effect of this contract is created separately at the time of the conclusion of the contract and the parties have mutual obligations, but the recovery of one of the parties to the contract or both parties due to the effect of the contract depends on luck and the profit and loss of the parties and its amount depends on a possible incident in the future. Nevertheless, despite the similarity with other similar contracts, the mentioned contract is different in terms of basics and conditions, and its characteristics are covenantal and continuous. It does not consider it effective and as a result the possible contracts are valid and valid.

This article studies the concept of the penalty clause in the Iranian Legal System. The authors have tried to study the relationship between this concept and discretion through the study of the existing theories about the concept of commitment and legal Provisions and judicial Provisions. For this reason, the penalty clause has been studied as one of the clear rules under the Obligations Law. The authors have tried to examine the fundamental principles, and legal articles cited in the field of the penalty clause and its legal implications in the validity of concepts such as obligation, damage, authority, and being bound over. In this study, an attempt has been made to highlight and study the problems in this concept while taking a critical approach.To do this, the authors have used a collection of library information while studying the literature on the subject. they summersied their suggestions at the end of the paper.

Nowadays, many infertile couples around the world have become parents through assisted reproductive technologies. In this study, we aim to examine the jurisprudential and legal aspects of artificial insemination, as our legal system is rooted in jurisprudence and without addressing its fundamental principles, it becomes difficult to establish legal rights for them. Therefore, in the jurisprudential examination, we first address the issue of permissibility or prohibition of using these artificial insemination methods, and then examine the legal status of these methods that determine the lineage of these children, and finally discuss the legal rights and obligations of the parties involved in the artificial insemination contract, as determining the child's lineage will clarify other issues such as custody and guardianship. New fertility or artificial insemination is a therapeutic approach that was developed in the late twentieth century to treat infertility in couples. This therapeutic method began in 1765 and eventually led to the treatment of infertility in humans, and among the methods used in this regard is the use of a surrogate or second husband's womb to place the fetus for growth until the moment of birth.

The principle of "the effect of privity of contract " or the principle of "privity of contracts " is a well-known principle in the law of obligations, which is recognized as the principle in all Legal systems. Based on this principle, the obligations of the contract are liabilities of the parties of the contract, and the benefits belong to the parties, and it does not create obligations for third parties as third parties cannot expect profit from the contract. But the principle of the privity of fault in terms of the possibility of a third party citing the violation of the contractual obligation seems to be against the principle of privity of contracts, and this question can be raised If in a contract, obligations are violated and damage is caused to a third party or parties, can this violation of the contract by the parties of the contract be cited as a fault? In French law, the discussion of the privity of contractual fault is raised, and in English law, the examination of some opinions shows the tendency of this legal system to raise this issue, which is raised in this article with a comparative study of Iranian law. It seems that contractual fault has a relative concept and despite the principle of privity of contract, there is an advantage for the third party to rely on breach of contractual obligation to claim damages.

Today, online stores sell goods and services through online contracts, exchanging emails with the other party, or filling out a specific form on the website by one party. Online contracts may be executed by presenting the terms of the contract to one party and then asking the applicant to click on the words "I agree" or something similar. The number of consumers who use online platforms to fulfill their shopping needs has increased, and online stores have responsibilities for the intermediary role and the platform they provide for online buying and selling. From the legal point of view, two types of contractual or non-contractual responsibilities can be considered for these stores. Currently, these types of internet businesses are very popular among users, but in any case, we should look for a space to increase the security of this type of service and secure it, while taking care of and protecting consumer rights; because at present, with the very wide growth of this type of websites and online stores in different fields, we have witnessed the provision of services in the fields of sports, culture and leisure, electronic devices such as audio and visual devices, household, personal and office, real estate and land, vehicles, services and training, supplies and business, and even recruitment and employment or expression of job opportunities, etc. Since online platforms often act as "gateways to control and limit interactions in a system", the first question is whether online platforms and online stores can still be considered simply as intermediaries or should they be suppliers. The second question is whether platforms, as dominant channels in the market, may be held liable to their customers for infringements caused primarily by platform suppliers. Finally, the third question is whether there is a necessary connection between the first and second questions, namely that the platform operator may be held liable to its customers while it may not be treated as a mere intermediary, it may be treated as a supplier of goods and services provided by Platform Providers. Regarding the activity of online stores and their responsibility for their actions or others, it cannot be assumed that they are not absolutely responsible. The important issue is that in online shopping, the buyer makes a transaction that the seller has not seen closely, therefore, the necessity of such purchases, due to its nature, requires more support from the buyer. Because in such transactions, the buyer does not have detailed information about the seller of the goods, their credit, and the transaction, and the burden of the purchase risk is on the shoulders of the buyer. For this reason, as well as for the specialization of the subject and its great application and importance, in this research, an attempt will be made to examine the civil liability of online stores in the laws of Iran and the European Union. In relation to the foundations of civil responsibility of online stores, the theory of fault should be accepted as the main basis of civil responsibility in the laws of Iran and the European Union. In fact, where the providers of their Internet services and goods commit harmful acts, their liability is still based on fault. However, regarding the responsibility of internet sellers, you can also refer to other bases. The important thing about online stores is that concluding a sales contract through the internet in this category of stores should not create doubt that online stores are not subject to the general rules of civil liability. On the contrary, it should be stated that such stores are subject to general rules regarding civil liability rules; because buying or selling through online stores differs from traditional contracts in only a few specific cases; the most important of which is the method of concluding a contract. In other words, except for a few minor cases, in other cases, buying from an online store is not much different from buying from a real store; therefore, in relation to the civil liability of online stores, two types of liability can be realized, contractual and non-contractual liability. This type of separation in civil liability has been accepted both in the civil law of Iran and in the civil law of the European Union. On the other hand, in order to realize the civil liability of online stores in two areas of contractual and non-contractual liability, certain conditions are necessary. So in the field of contractual liability, the existence of a valid contract, breach of contract, and the existence of damage caused by the breach of contract are necessary, and in the field of non-contractual liability of the online store, the occurrence of loss, harmful action and the relationship of causation is necessary. It is suggested that cyberspace and internet stores are very suitable for millions of jobs. On the other hand, the Internet is a useful tool for marketing various services. In this regard, the creation of up-to-date and applicable laws as well as the amendment of existing laws are more important than ever. For this reason, it is suggested that, especially in Iranian law, laws in the field of online stores should be formulated in a specific way, and in these laws, the civil liability of this type of store should be determined clearly, inspired by the principles of civil responsibility and not limited to accepting one of the opinions and principles. Laws that, in addition to preventing the occurrence of computer crimes, should provide the opportunity for legal internet businesses to operate and grow, and this means that the laws are fair. In addition to the definition of platforms, the law that is developed for this purpose should include the providers and users of the internet platform for the purpose of electronic commerce, the law that is formulated for this purpose must state the criteria and criteria accepted in the legal analysis, of course, a mechanism for the purpose of floating the bon and the ability to generalize the criteria. Claims between parties (both platform, supplier, and user) should be considered. Also, the cases where the rules related to transactions do not respond to the new needs are written and govern the relations of the parties.

With the tremendous advancements in the field of science and technology and the invention of new electronic technologies, the lifestyle of human society has also undergone a transformation. These changes have been evident in all areas, including the formation of contracts and legal agreements such as the marriage contract, which can now be concluded through modern methods of electronic contracting. Therefore, the legitimacy of modern methods of contracting marriage is of great importance from a jurisprudential and legal perspective. This issue has been examined in various sources, including existing documents and records in this field, as well as jurisprudential and legal texts of both Iran and Egypt. It can be said that from a jurisprudential and legal perspective, the specific terminology used in the marriage contract holds a special position in determining its legitimacy. This is because the intention and volition of the parties involved are expressed through words, rather than actions. However, if written or electronic correspondence is used in the process of contracting, the legitimacy of the contract may be subject to doubt. These key concepts, including legitimacy, methods, contracting, marriage, Iran, and Egypt, have been thoroughly examined and analyzed in the aforementioned sources

The issue of possibility of adding a supplementary condition to the contract has been considered by jurists from the ancients to the later ones, as well as Iranian lawyers. However, disagreement exists. It seems that this is rooted in the differences between experts' opinions regarding the condition and the quality of this credential creation. Therefore, it is necessary to collect important ideas to introduce a new classification of these topics to reach a better understanding of the issue. Accordingly, this Article, using a descriptive-analytical method, examines the sources collected from studying the opinions of the supporters and opponents of adding a condition to the contract then categorizes the opinions of the experts from both groups and also expresses the criteria adopted by the authors about the connection between condition and contract. So, it is concluded that since the condition is an obligation linked to a contract, it can be added to a previously existing contract and as a result of this addition, it is considered binding. Also, since the condition is a credential nature, any interference in this creature is in the authority of the parties. Thus, those concluding the main contract are entitled to decide about supplementary conditions and contract scope.

The currency system of the country has been in turmoil in recent years due to the imposition of international sanctions against Iran, and illegal currency brokers and traders have fueled this turmoil. Meanwhile, some unauthorized foreign exchange brokers and dealers have further provoked the turmoil. Unfortunately, by forming groups of hundreds persons in real life and virtual environments, some of the brokers attempt transactions called “foreign exchange value tomorrow” something which, according to economic studies by the central bank of Islamic republic of Iran, have created disturbances in the Iranian economic system. foreign exchange value tomorrow transactions include those transactions when the parties, without giving or taking, postpone foreign currency delivery to tomorrow or some days later, while most of the time no delivery takes place, and the parties just regard the exchange rate difference. According to the regulations of foreign currency exchange and amendment of anti-smuggling of goods and currency act, foreign exchange value tomorrow transactions, are considered illegal.

In order to analyze and distinguish the legal nature, jurists have divided legal events into legal actions and events. The criterion of will as the basis of exclusive division has caused any legal nature of it to be under the headings of event, contract or agreement; In the meantime, some have not considered this division as comprehensive of all natures, and have forged a third clause as a part of contract and agreement, as a purgatory between the two, and some as a third nature. The weakness of the principles and many ambiguities of this approach along with the shortcomings of the first division have caused some, regardless of the existing divisions, while commenting on a legal nature such as forgery, to express that forgery can be both a contractual and a contractual application; Without questioning whether this capability is specific to a particular legal nature or whether it is possible to extend it? Nor is it addressed how a legal act can have different contractual and contractual instances? Finally, we will be faced with an approach that recognizes the existence of a verbal commonality between different instances. In this article, what has been achieved is that for a legal action, contractual and contractual examples can be considered. Such a theory requires a correct interpretation of the legal practice in order to be able to consider it as a possibility that can contain distinct examples and can be proposed as a general theory.

The right of lien in Iranian law has been explained by jurists, considering Article 377 of the Civil Code. This article is included in the submission of the contract of sale and the jurists mainly deal with this article only in the topic of the right of lien. However, attention to other regulations, jurisprudential analysis, and comparison with foreign laws demonstrate two types of liens can be identified in Iranian law: 1) equitable lien (in cases where there is a balance between the parties), 2) possessory lien (the legal right for a creditor to preserve the property of the debtor). This is while the review of the equitable lien in the works of legal writers did not leave room for an independent review of the lien of possession, even though this type of right of lien has been present in Iranian law since 1/6/1312 (1933) with the approval of the law on the debt of immigrants to guest houses and boarding houses. This article, through the descriptive-analytical method (library study), seeks to identify possessory lien as an independent institution in Iranian law with a comparative study.For this purpose, a comprehensive definition of the right of lien is provided in the present research: "The right of Lien is the legal right for a person that is settled in the property of others until the fulfillment of their debt and obligation." This definition, in addition to including various types of the right of lien by passing the traditional point of view, also opens the way for the use of other types of right of lien, including maritime lien, which is itself one of the type of the right of lien in possession, in Iranian law.

Given the legal vacuum in domestic law and the legislator's silence in explaining the legal aspects of unfair terms and the criteria for their recognition, this study examines the criteria for determining the unfairness of contract terms. . Criterion for Determining Unfair Contract Conditions Roots in Unfair Contract Conditions Characteristics, including Works, Performance Guarantees, Impact of Unfair Contract Conditions and also on the Basis of Unfair Conditions, such as Fairness and Fairness and Goodwill and Their Role in the Contract Contractual freedom and the conflict of principle have to do with unfair theory and implicit condition theories, contrary to good faith, fundamental breach, harmful rule, gross negligence, and so on. To assess whether or not the terms are unfair, other components such as non-negotiation of terms, unequal bargaining power, imbalance in the rights and obligations of the contracting parties to the detriment of the weaker party, the degree of conditional release in accepting and rejecting the terms and not being transparent. One of the criteria for identifying unfair terms is. According to the International Commercial Arbitration Act, Article 456 of the Code of Civil and Revolutionary Courts of Civil Procedure adopted in 2000, the Iranian Maritime Law (in Article 179), the E-Commerce Act of 2003, all unfair terms which prejudice the rights of the other party. , Has no legal effect. Finally, despite the richness of the jurisprudence in this area, the existing rules on the "unfair condition and criteria for its detection" are ineffective.

This article is a comparative study of the concept of penalty clause in Iranian and Egyptian law. In this article, the authors have studied the concept of commitment to the validity of the more fundamental idea of commitment. For this reason, they have tried to provide a newer research proposal in this field. Since it is expected that comparative studies from a practical aspect will lead to the improvement and excellence of legal institutions and the recognition of deficiencies and their elimination in different legal systems, the authors of this article have tried to study the philosophical foundations of each of the compared systems. have been placed, regulate the existing laws, procedures and legal institutions of the present work. Based on the results of this article, the authors suggest that any study about the concept of commitment in Iranian law should be based on understanding the idea of commitment in Shia jurisprudence. This article has also shown how the foundations of Sharia, Shiite jurisprudence, and customary law, French law in Iran's civil law have led to the emergence of challenges for formulating the concept of obligation. A challenge that somehow existed in the era before the victory of the Iranian Islamic Revolution.

Numerous works and principles can be extracted from the concept of contract. The principle of binding implies that the parties implement what they have undertaken. Therefore, the possibility of transferring obligations from one of the contracting parties to another seems contrary to the principle. Therefore, the consent of the other party is a necessary condition. On the other hand, some people believe that the contract has a kind of economic tax and, like other property, it can be transferred. On this basis, jurists use a term called contract transfer, which is common in Iranian and French law, many aspects of which remain unknown. The authors of this article in this research with a descriptive-analytical method, considering the recent amendments to French law, examine the legal nature of contract transfer, try to fill the gaps in Iranian law in this field by providing the necessary proposals and On the other hand, explain the need for effective identification of this legal entity