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

Based on the general rules of contracts, contractual obligations create based on the intention and will of the parties and the content of the agreement; However, in some cases, the legislator does not observe this rule and he assumes that there is a contractual relationship between the parties, contrary to the real will of the parties; and he replaces the real nature with a contractual nature, and he imposes the effects of the second nature on the first. The present study aims to explain the nature and extent of this practical procedure of the legislator. Based on this, the authors have examined the examples of legal relations witch the legislator assumed as another contract, so that by using the descriptive-analytical method, authers could get a rule to identify them in the legal system of Iran and England. In English law, examples of this presumption are similar to collateral contract, good faith and legal fiction. On the other hand, its examples in the law of Iran should be considered such as apparent representation, coercive suretyship, etc. The comparison of the mentioned institutions can lead to providing a clear Criterion of this practical rule of the legislator. Finally, it was concluded that the examples of domestic law are consistent with the structure of Usool-based Hokumat rule, and on the other hand, despite the similarities of this concept with the collateral contract and the good faith in English law, their nature should be considered different. But although the legal fiction is generally used in the field of non-contractual relations and it is less used in the contractual field in the English legal system (both in the legal literature and in practice); it is similar to Hokmi contract, and the logical relationship between the two can be described as “absolute general and specific”;

Traditionally, legal texts and contractual terms have been the determining factors in shaping the behavior of contracting parties in contractual relationships. However, in recent decades, legal scholars have debated the possibility of using unwritten principles and norms to modify contractual relationships. One of the most prominent examples of these principles is the commitment to good faith. This commitment is an unwritten ethical and legal principle that refers to the duty of contracting parties to act reasonably and consider each other's interests and expectations without unreasonably jeopardizing their own interests. It is originally a Roman legal concept and a general rule that is applied in various contractual areas, such as employment contracts, trusts, e-commerce contracts, and commercial cooperation contracts. This research aims to examine the concept of the commitment to good faith in the Nordic legal system (Scandinavia or Northern Europe, including Finland, Sweden, Norway, and Denmark) and the Islamic legal system using a descriptive-analytical method and relying on library resources. The commitment to good faith in Shia jurisprudence, which is the basis of Iranian law, has not been recognized as an independent principle and source of obligation. However, the general principles of custom and humanism in law, the concept of the aforementioned commitment, its results, and the obligations arising from it can be inferred from the discussions of fraud, deception, Najsh (auction bidding to raise the price), Talaqi Rokban (intercepting a traveler to buy goods at a lower price), and so on.

While Good Faith has been recognized as a common concept in the various branches of law, in public law, it is rather a new concept. In this field, good faith is a necessary and fundamental concept based on the modern right-based approach, particularly for citizens to be supposed trustworthy, along with loyalty of state to its administered people. Furthermore, assuming good faith for the state plays an important role to promote efficiency in society. Honesty, loyalty, and fair measures, or justifiable ignorance and forgivable error are two meanings propounded for good faith, as opposed to malice, abuse of authority, and fraud. Like Justice, Fairness, and Good morals, the definition of good faith which has been regarded as a subjective and relative concept, is difficult and with ambiguity. Of course, this concept is better explained by its oppositions and applications. Good faith in some applications is presented as a legal principle and standard of behavior, while in others as a legal presumption, facilitate the burden of proof and repudiators must prove their claims. This article seeks to analyze the concept of good faith and recognize it in public law, especially based on its application in administrative laws and cases. Although the meanings and definitions of good faith in public law are not far from other fields, their applications are different. So introducing this concept can gradually lead to an evolution in Iran’s public law system.

The concept of good faith is recognized in many legal systems and entails significant implications. It has received particular attention and influence in German and English law across various fields. The liability of non-owner possessors (in both legal and material terms) represents one of the most important areas. This paper aims to examine the possibility of the impact of good faith on the liability of non-owner possessors regarding damages caused to the subject of possession, as well as the quality of this impact, through a library-based comparative analysis. In German and English law, the recognition of the concept of good faith and the emphasis on attributing damages to the conduct of the possessor to recognize their liability, alongside the influence of good faith in establishing this attribution, have allowed the good faith of the possessor to eliminate or mitigate their liability in both tortious (obligatory) and contractual contexts. However, in domestic law, the influence of jurisprudence and the scope of the concepts of usurpation and quasi-usurpation, particularly in cases of material possessions, limits the support for a possessor acting in good faith, and it seems that the solution to protecting a possessor acting in good faith lies in distinguishing between the usurper and the quasi-usurper. On the other hand, in legal possessions, the attribution of damages to the conduct of the possessor receives more importance, and to some extent, the situation is similar to German and English law.

In most legal systems today "good faith" is a well-known and effective concept in legal relations. One of the most important aspects of this effect is the effect of good-faith in the transfer of ownership. So if the person in possession; was acted in good-faith and unaware of the other’s rights to the property transferred; subject to some conditions, his good-faith causes the transfer of ownership to him and remains immune from real owner. This approach has been reinforced in German law, meanwhile specifying in legal provisions, by the establishment of principles and rules by jurists. In English law, however, the concept of good-faith has not been as popular as that of German law. However, the vast powers of the courts and the adoption of realistic, justice-based approaches by them, have led to the protection of good-faith possessor and this approach has been extended to some legal provisions. The concept of good-faith is also recognized in domestic law and is specified in some legal provisions. considering the dynamism of “Shi’a jurisprudence” as the basis of rules and legal provisions in domestic law And the lack of any conflict between the essence of good-faith and this basis, It seems that The approaches of the German and English legal systems can be used to strengthen these domestic legal institutions whose actions lead to the protection of the good-faith possessor and change some traditional approaches which the application of them would lead to the detriment of the good-faith possessor.

It seems that the common law legal system - which was formed under the influence of the procedures in the English courts and a part of the law of negotiable instruments-which is called in Iranian negotiable instruments law as cambial law- lacks general legal rules which are inspired from ethic due to satisfying commercial needs.

In this study, the flow of ethical rules such as the estoppel rule, the doctrine of clean hands, good faith, etc. in the British multi-layer legal system has been investigated in this analytical-descriptive method.

Ethical Considerations: 

The existence of some rules and institutions has guaranteed the ethical functioning of the negotiable instruments in the multi-layered system of English law. For example, the rule of estoppel does not only prevent the signatory of instruments from invoking to the defects of the original relationship against the holder based on the validity of the instrument, but also in case of non-payment of the amount stated in the instruments and making a protest, its payment as a civil liability imposes on him. The rule of clean hands means that a person who owes money to another cannot file a lawsuit against him for the same amount.

English law guarantees the necessary standards for appropriate cambial law through the formulation and development of several ethical rules.

Litigants have several rights in civil proceedings; these rights may be abused. In this regard, according to Article 40 of the Iran's Constitution and other principles (including the role of prohibiting the abuse of rights as one of the legal principles, paying attention to the purpose of civil proceedings, public order, and the role of ethics in law), the abuse of rights in civil proceedings is also prohibited. Prohibition of abuse of rights, like other legal rules, requires a sanction; according to this, it is necessary to identify the sanction of this legal principle, and the present research has been presented for this purpose. The results of this article indicate that the prohibition's sanction of the abuse of rights in civil proceedings is divided into two categories: general sanction (including "non-ordering of the effect on the abusive act" and "compensation") and special sanction (including "civil fine" and "criminal responsibility"). Each of these sanctions have specific nature, conditions and rules that are explained in this research.

The sanctity of the medical profession in our society is rooted in both religious teachings and rich Iranian culture. For this reason, in Islamic jurisprudence, the subject of medicine and Iatrology has been the subject of extensive technical and legal discussions as a separate chapter. On the other hand, the principle of good faith and mutual trust in the doctor-patient relationship requires both parties by respecting their agreement, do not refuse to fulfill their obligations without a valid excuse. The main question is to what extent the good faith is based on the responsibility of the doctor. It is affect? In this article, with a comparative study of the French legal system and jurisprudential sources, while examining the theories related to the relationship between the doctor's responsibility and the intention of beneficence and good faith, it was concluded that the existence of good faith is both effective and also is regarded as a factor to reduce the amount of damage which is compensable.

The meaning of the term pre-contractual responsibility is the study of the relations and obligations of the parties in the period before the conclusion of the contract. In relation to the limits of the pre-contractual obligations of the parties, the jurists have put forward three theories with the titles "principle of negotiator's responsibility", "principle of non-responsibility of the negotiator" and "intermediate theory" and each one depends on the case to justify their theory according to Hassan's principle. The intention in contracts and the principle of freedom of negotiation are invoked. In relation to the reason and the basis of negotiator's responsibility in the contract, violation of the principle of good faith, basic agreements, trust relationship and custom and the assumed will of the parties are cases. Uses responsibility. On the other hand, in relation to the nature and nature of such responsibility in Imami jurisprudence and Iranian law, some experts believe that pre-contractual responsibility is contractual, while others believe it is due to the rule of law and has coercive roots. It seems that where custom recognizes such a responsibility regarding the disclosure of basic information and compliance with good faith, it has a coercive nature.

Defense based on civil liability is divided into different categories based on its multiple meanings and diverse functions. One of the important types of defense in civil liability is the defense based on limiting the amount of responsibility, the proof of which without negating the responsibility of the defendant, simply reduces the scope of the defendant's responsibility and the amount of damages payable by him. Despite the importance of defenses based on the limitation of liability in harmonizing the rules of civil liability in terms of compensation and also creating a favorable legal order in civil liability claims, the examination of this type of defense as an independent topic in our legal system has been neglected. The current research, with descriptive analytical methods and with the approach of emphasizing the civil responsibility of the police, seeks to provide a coherent basis for the classification of defense types based on the limitation of responsibility in civil liability lawsuits through a systematic interpretation of domestic laws. In this regard, three general categories of defenses based on liability limitation in civil liability lawsuits can be identified and examined that are respectively based on the defense based on role of the victim in connection with the accident (including the contributory negligence of the victim and also the breach of the duty to mitigate damages), the defense based on intervention of third parties and Multiple Tortfeasors in the occurrence of the accident and in the end, the defense based on good faith of the Tortfeasor is divided.

backgroud and The principle of good faith and fair behavior is one of the important moral and legal principles. The purpose of this article is to examine the rules of good faith and fair behavior in contracts in Iranian jurisprudence and law and European Union law. This article is descriptive and analytical. The materials and data are also qualitative and data collection has been used.Ethical considerations: In this article, the originality of the texts, honesty and trustworthiness are observed. In the laws of the European Union, the principle of good faith and fair treatment is clearly stated. In Iran's legal system, the term "good faith" is not used in the civil law, but in laws such as the civil liability law approved in 1339 and the e-commerce law of 1382 and Iran's trade law, this term is implicitly used. In Shia jurisprudence, there are reasons that emphasize the necessity of honesty and correctness in contracts, including commercial contracts. In European Union law, good faith and fair dealing in contracts are explicitly recognized. The scope and function of good faith in Iran's law has been more prominent in the pre-contract periods and it is formed based on the will between the parties to the transaction and the intent to create contractual obligations. So that the issue of the functional domain of goodwill in Iranian law is related to intention

Litigation and its forms (which is "the right to sue" and the "the right to appeal against decisions) is one of the most important rights granted to individuals; these rights may be abused. For this reason, the issue of "abuse of the right to sue" and "abuse of the right to appeal against decisions" is raised. This study seeks to analyze the approach of the Iranian and French legal systems regarding the abuse of the above rights. The results of this study indicate that: The law of Iran on the prohibition of "abuse of the right to sue", provides a guarantee of enforcement, but does not say anything about "abuse of the right to appeal against decisions." French law prohibits the abuse of both rights and guarantees effective enforcement.

One of the sources of interpretation of the Convention on contracts for the International Sale Goods is the principle of good faith. The emergence of the concept of good faith versus Good Faith derives from the contract law of Rome. There is no definition of this principle in the law of the Roman-German or Commonwealth countries, nor in the Convention in question. Lawyers in different countries have generally been reluctant to define it for reasons such as its obviousness or even its difficulty. So that some authors in their article have called the definition of Good Faith "a definition of the indefinable". Others, however, have provided definitions. Given that the Convention on contracts for the International Sale Goods in paragraph 1 of Article 7 declares the principle of good faith as merely a means of interpreting the provisions of the Convention, this article specifically seeks to answer the question of whether good faith as a Is an independent obligation applied to the parties to the contract in the implementation of the obligations or not? The present study, which is based on a descriptive-analytical method and based on a library study written in order to respond to this important issue, examines rules and principles such as the principle of necessity, the rule of abuse of rights and the Estoppel rule to discover the basis of this principle. The provisions of the Convention on contracts for the International Sale Goods seek to identify and identify materials that have been developed in accordance with the principle of good faith in the performance of contractual obligations. as a result; It can be said that the principle of good faith is considered not only as a source of interpretation, but also as a contractual obligation in the implementation of the obligations of the parties.

The need to comply with good faith as a general binding principle that creates obligations for the parties at the stages of concluding, executing or interpreting the contract is not explicitly addressed in Iranian law. Accordingly, there has been disagreement for years regarding the status of this principle. Some jurists, citing Article 220 of the Civil Code, have considered custom to be the equivalent of good faith. Others have equated what is discussed in our regulations titled as knowledge and lack of knowledge as mala fide and bona fide, respectively. Recently, it has been put forward that it is possible to prove the need to observe good faith in application of all rights and duties in all areas including contract law by induction from the rules related to commercial competitions, insurance contracts, mistaken intercourse, referring of uninformed principal in an unauthorized transaction for damages and the correctness of the actions of the dismissed lawyer unaware of the dismissal. However, the need to observe good faith in commercial competitions is not a matter of judicial acts. Furthermore, due to having special characteristics and the need to observe maximum good faith in the insurance contract and due to the lack of common characteristics between the latter and other contracts, its special rules cannot be extended to all other contracts. In addition, the meaning of good faith in the rules governing mistaken intercourse, referring of uninformed principal in an unauthorized transaction, the rectification of official document, and the correctness of the actions of the dismissed lawyer unaware of the dismissal is its supportive aspect and is not related to the intended meaning of good faith in this subject. Therefore, the examples presented for inductive generalization are not conventional and therefore the conditions for relying on induction in this regard are not provided.

In obligations, there are factors that can delimit it and cause it to change or void. good faith is one of the elements that can make a difference. In French law, previously, good faith was considered effective merely in the performance of the obligation, but by amending its law in 2016, it extended it to pre-commitment negotiations and the creation of an obligation. Goodwill has been used in both general and specific meanings. The effects of that in delimiting obligations are different in the general and specific sense. Goodwill works in the general sense appear in the role of mistake, and in this regard, the laws of Iran and France have similarities and differences other And in a special sense, it is crystallized as a lack of information or dishonesty in behavior in this regard, Iran's rights do not have a common path with France and in some cases, it is not even recognized.

The litigants in civil proceedings have several rights. These rights may be abused. In Iran's Civil Procedure Law, the prohibition of the abuse of the right is not explicitly foreseen in the form of a legal article. Therefore, a fundamental question is raised that "is the principle of prohibition of abuse of rights accepted in civil proceedings or not?” Due to the silence of Iran's Civil Procedure Law, there may be doubts about the prohibition of abuse of rights in civil proceedings, but by using the library research method and citing other evidences and foundations (including legal principles, public order, ethics, proceedings’ purposes, etc.), this doubt will be resolved and it will be possible to prove the prohibition of abusing the right in civil proceedings. Although these foundations are also current in French law, the French legislator has not been satisfied with these foundations and has not remained silent regarding the prohibition of the abuse of the right, but has provided transparent and numerous legal articles to prohibit the abuse of the right.

Due to the increase and development of international investment arbitrations, investors have abused procedural tactics to increase their chances of winning in these arbitration proceedings. This undermines the credibility of international arbitration as one of the effective means of resolving international disputes. Abuse of processes in investment arbitration takes place when an investor exercises his right in a way that is contrary to the aim and purpose of that right. It happens when chain companies and subsidiaries owned by a parent company or shareholders of a chain company with different nationalities seek the same relief against the host at different arbitral tribunals in parallel or simultaneous lawsuits. Therefore, the host state will face multiple claims from multiple investors and is required to pay multiple damages. The principle of abuse of process is an expression of the more general principle of good faith, a fundamental principle of international law, as well as investment law. So, ICSID tribunals will often invoke the principle of abuse of process in their cases.

the USA has extracted its very first oil reservation in the late of 19th century and it caused the notable change of political and economic position of the USA in the world. from the legal perspective the USA also faced with essential change in the contractual system and it was because of the common usage of joint operation agreements that is one of the most popular contacts in the USA oil & gas industry and legal system. The parties of this kind of contract are divided into operating party and non-operating party. This article has analyzed the reason why this kind of contract is popular in the USA oil & gas and legal system, the role and duties of operating party and the method by the rights of non-operating party might be preserved to make sure that the rights of the non-operating part is preserved and the expectations of the contract will be fulfilled.

Good faith, as one of the fundamental principles of international law, indicates the need for fairness, honesty and reasonableness in international relations. And the International Court of Justice and other international judicial authorities have been repeatedly cited. The judges of the Court have also discussed and cited the concept of good faith in their separate opinions on various occasions. The International Court of Justice, citing the principle of good faith in the settlement of international disputes, has played an effective role in objectifying some manifestations of the principle of good faith in international law and in the process of interpreting the law, creating the law, replacing the law or removing ambiguity International law - sometimes from general principles such as good faith, has made effective inferences that are helpful in understanding the content of the manifestations of good faith and its legal criteria. In the first part of the present article, we examine the principle of good faith and its various manifestations, and in the second part, we analyze some of the cases that have been invoked in the procedures of the Permanent International Court of Justice and the International Court of Justice.

The purpose of this research is to on what basis the other party or a third party may be required to provide evidence in favor of another. Concerns about discovering the truth and the need to observe good faith in proceedings require that litigants and even third parties be required to provide evidence in favor of another.   This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles. In order to be successful in litigation, it is necessary to identify and prove the relevant issues; That's why the ways to access evidence are so important. The mechanism of discovery and disclosure may be effective in proving the subject matter;Ethical Considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed. The research results show that either party to the dispute may request the disclosure of documents and any other evidences related to the dispute from the other party or third parties, while in litigation it is the responsibility of the litigants to propose relevant facts and the claimant is responsible for proving these matters