جستجوی مقالات مرتبط با کلیدواژه « goodwill » 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.

In Chapter Two of the Landlord and Tenant Law of 1997, the legislator, in an effort to legitimize the institution of goodwill and drawing from Imam Khomeini's Tahrir al-Wasilah, has recognized this right. Accordingly, the tenant may negotiate with the landlord to gain privileges such as the right of priority in leasing. Just as the acquisition of these privileges, known as goodwill, is based on mutual agreement, its transfer and waiver must also be agreed upon. Article 6, Note 2 of the said law states: "If the landlord transfers the goodwill to the tenant through legitimate Sharia means, the tenant is entitled to demand the goodwill at its fair market value upon vacating the premises." In this regard, the authors, based on substantial reasoning, believe that unlike the previous law, the creation, transfer, and waiver of legitimate goodwill are solely based on the agreement of the parties. Demanding the goodwill value as a legal obligation at a fair market rate is unjust and leads to the infringement of both landlord and tenant rights.

At the first glance, discrimination concept is so clear that no other clearer definition could be presented but its own definition. But in practice, it turns into a complicated and unresolved issue. Some rules are not apparently discriminatory but they lead to some discriminatory effects. Sometimes, internal intentions turn neutral actions into discriminatory behavior and some other times, positive measures which have been adopted to be compatible with equality turn into discriminatory behaviors in the end. It is essential for human right organizations and institutions and a main goal for the current research to present an evaluation criterion to determine whether a legal regulation or an action is discriminatory or not. In this research, three evaluation models (the model based on deontological point of view, the teleological model-trace consequences- and finally the model based on religious teachings-Islamic view) have been presented which have been successful to recognize real discrimination. This research has analyzed the human right documents and popular points of view in international courts.

Goodwill is a right that is realized at the beginning of the lease relationship by paying an amount from the lessee to the lessor and is affected by factors such as the location and size of the building and by creating rights for the lessee, including having the right to extend the lease term. Before the approval of the Landlord and Tenant Law, goodwill was a common and unquestionable custom among the general public, especially prominent businessmen and merchants, and had a very strong guarantee of moral implementation. Goodwill, unlike some jurisprudential concepts such as sale, purchase, lease, and mortgage, is a vague and unclear term, especially for the general public, and researching it and the rulings related to it is appropriate and necessary. In this article, the definition and conditions of goodwill are stated and its jurisprudential and legal documents are reviewed. The information was collected through a library and processed in a descriptive and analytical way. All source and document references are in-text (APE and MLA).

Sunni scholars maintain two different perspectives on goodwill: A group has validated it based on the tradition and religious expediency; others have regarded it as illegal according to its lack of religious documentation and its negative consequences. In the present study, the perspective of the proponents of goodwill validation will be approved, based on which receiving goodwill price is free of religious objection. In addition, goodwill is regarded in accordance and consistent with the Landlord and Tenant Relations Law passed in 1997. Instances of acceptance of goodwill price can be in exchange for fame and privilege of a location, or benefit of permanent residence in aforementioned location, or in return for the owner’s waiver in his right to benefit from the ownership, even if the owner of the benefit is not the owner of the object of sale. The result of the induction in the opinions of the Sunni jurists, the Iranian civil law, and legal texts is that there are six types of goodwill in estates and premises. In addition, in all of these types, Sunni jurisprudence and Iranian Civil Law are in accord and consistent with one another, except for the sixth type (traditional goodwill) in some legal texts. This inconsistency, however, seems to be a verbal rather than a substantive difference.

Goodwill, as one of the most essential components of business for traders, specifically includes knowledge, information, trade name, customers, place of business, merchandise, key money, the right of business and trade, and finally the tangible and intangible elements of a concept called "goodwill" or "business institution". Goodwill", a doctrine by jurists, is one of the specific concepts of commercial law, which is not merely restricted to commercial law regulations; however, it has different elements that are legislated in various laws. Perceiving this concept makes its elements find their true place in the commercial law. The present research investigates the background of "goodwill" in the legal systems of Iran, France and the United Kingdom. Meanwhile, the related elements and provisions will be discussed. Also, this study is based on the assumption that many ambiguous concepts find their place in the commercial law by perceiving the theory of "goodwill" through library and analytical method.

In accordance with the Law on Landlord and Tenant Relations approved in 1997, when the lease term expires, the tenant receives the goodwill right to discharge and the landlord is required to pay the goodwill. But the law does not explicitly specify which of these assignments is prior to the other. The prioritization of goodwill towards discharging is a problem that will affect the tenant's capital to sustain the acquisition of a new location. There is a controversy among lawyers in response to the question. According to some property evacuation is subject to a goodwill replacement, while another group considers the need to discharge before receiving this amount. In this descriptive and interpretive article, in addition to explaining various views on the issue in Iranian law, it is attempted to explain the idea that goodwill is preceded by eviction and is ultimately strengthened by the study of Islamic and French law. This will help resolving the ambiguity that the courts are facing with in this regard.

By studying iran's legal system and approaching legal texts about contracts, the effect of interpreting factors such as custom, law, etc. We understand, but the dispersion and lack of focus on drugs and the mention of instances instead of the expression of the rule on the one hand and on the other hand, not paying attention to the principles and rules of interpretation accepted in different legal systems In fact, they help to remove barriers to the implementation of the contract, which strengthens the thinking that the rules and principles of interpretation should be collected in accordance with the principles governing the contracts and the general rules. About the interpretation of the contract". In Iranian law, fairness has been identified as a rule and interpreting tool in private relationships of individuals. In British law, fairness has a strong position. The principle of goodwill in Iranian law is not reflected in any legal text. In British law, the acceptance of goodwill as a principle has been met with resistance, because in the law of this country in the field of contracts, attention to the terms and phrases of the contract and the contract document is assumed that the parties have mentioned whatever they want in the contract. In cases where the contract is incomplete, implied conditions are entered into and the contract is completed.

According to the rule of mitigation of loss, the aggrieved or injured party should not simply watch the damage, but must take all the normal, reasonable and necessary measures to reduce the damage; otherwise, he will not have the right to claim revocable damages from the defendant. Various ideas have been presented about the basis of this rule. Some jurists and courts consider the basis of this rule on cause and effect and equate it with the theory of contributory negligence. Others believe that the basis of the mentioned rule should be sought in the theory of the predictability of the losses. The principle of goodwill is also mentioned as another basis of the rule of mitigation of loss. In United Kingdom law, the basis of this rule has an economic basis, and economic efficiency is the main factor in the expansion of the rule in the Common law and international trade. In Islamic law, Qa’id-e Iqdam[1] is one of the principles that can be proposed. In this paper, in order to deduce the validity of the rule of mitigation of losses, the basics of reducing the damage and the duty to mitigate losses in Iranian law are examined.

“Inopposability” is a situation contrary to the principle and exception to "opposability" whereby the indirect effect of the legal element is disappeared against third parties, meaning that third parties obtain the right to reject and ignore the inopposable legal element. In the scope of Iranian commercial law, there are numerous examples in which "inopposability" is mentioned. In spite of these many instances, it is unclear who, against whom, and how can take advantage of the inopposability, what are the effects of inopposability and how is this situation disappeared. In general, it can be said that the general rules governing inopposability in Iranian law have been ignored. To answer the above questions and provide general rules of inopposability in commercial law, we should start with the examples of inopposability and then classify them. Numerous examples of this notion in commercial law, can be categorized, based on the legislator's intent to establish the inopposability, to inopposability due to non-disclosure, inopposability due to defect in form, inopposability due to clandestinity, inopposability of nullity and inopposability with the aim of maximizing third party protection. In order to analyze the general rules of inopposability, in answering the question of who is in favor of the inopposability situation, it should be said that the beneficiaries of inopposability are third parties affected by the legal element, that the legislator grants them the right to choose or right to criticize such a legal element and in principle their "goodwill" is a condition for using it. In answering the question of against who this legal situation is opposable, it should be said that inopposability is opposable before everyone, either to the direct or third parties in such a way that in the assumption of conflict of interest between third parties beneficiaries of inopposability and other third parties, the interest of first persons must be prioritized. In examining how to use this legal situation, it can be said that interested third parties can suffice to present their right in the form of objection. That is, if the third party is the defendant of litigation, it is sufficient to refuse the action brought against himself and, if the third party is the plaintiff of litigation, it is sufficient to refuse the objection due to the opposability of legal element with inopposability. The effects of this legal situation on third parties include the disappearance of the harmful effects of the legal element on said persons. Therefore, if the legal element is not harmful to the third party but vice versa is in his favor, the inopposability is disappeared. In the case of the effects of this legal situation on direct parties, since the direct effects of the legal element on its direct parties are not harmful to third parties, such effects are retained and in fact towards direct persons, theoretically, the situation is as if there is no inopposability. Finally, it should be noted that , contrary to absolute nullity, inopposabilityis a deteriorating situation. In cases where the inopposability is due to the failure to comply with the formalities, this situation is generally resolved by subsequent observance of required formalities. Since the legislator has in principle considered the goodwill of third parties as a condition in establishing inopposability, this situation has also been disappeared in the assumption of third party awareness. In addition, due to the right to choose, as a result of the inopposability, for third party, one of the disappearance of the inopposability may be the waiver of the said persons from inopposability, or in other words, waiver their right to criticize.

Due to their specific characteristics, lease agreements for commercial and non-commercial premises have been considered by the legislature, and accordingly, several laws have been enacted after the Civil Code. However, in none of these laws has the legislature explicitly mentioned their loss or destruction. Unlike movable property, which is completely destroyed by its destruction and as a result, its benefits are lost. In rental places, first, only the land is lost and the area remains the same. Unlike movable property, which is completely destroyed by its destruction and as a result, its benefits are lost. In rental places, first, only the land is lost and the superstructure remains the same. Thus, the provisions of the Civil Code regarding the destruction of the leasehold cannot be a suitable answer for commercial premises.

In case of doubt about the meaning of a written contract term, not individually negotiated, the terms is interpreted in favor of the person who contracted the obligation and against the person who stipulated it, because a person who produces a document had the capacity to avoid ambiguities. This principle has been clearly recognized in article 6 of CESL and article 8 of UPICC, and paragraph 3 of article 8 of CISG accepted this principle implicitly. Although this principle is not explicitly regulated in Iranian law but according to some principle of contract law like: the principle of fairne ss and equity, principle of goodwill, principle of observance of public order, principle of causation, principle of freedom of wills and principle of lack of misrepresentation, we can infer the Contra Proferentem Doctrine.

In Iran's criminal codes, the title of goodwill and its role in the deterioration of criminal responsibility has not been given special attention and has not been addressed in the form of an independent element, but it is possible to measure some of it in the rule of Ehsan, which in Article 510 of the Criminal Code. U Approved in 1392, it appears independently. By contrast, in Indian law, the legislator, both in the Penal Code and in the general law of the country, takes a different look at the definition of goodwill and states that the basis of goodwill is to censure criminal responsibility, to be careful and to take caution, However, according to Indian general regulations, only honest belief is sufficient to eliminate criminal responsibility, whether it is precision, attention or negligence. From the precision and reflection on the various materials of the Iranian and Indian penal codes, it was concluded that goodwill according to its functional scope is considered as the commonality between the dominant causes of the elimination of responsibility and the causes of crime.

The general rule of Key Money or Goodwill, as is common among people in Iran, could be found in Note 2 of Article 6 of the Landlord-Tenant Relations Law passed in 1997, which states: "If the landlord transfers the key money to the tenant with a correct legal form, at the time of eviction, the tenant receives the right to legally demand key money on fair day rates." The legislator proposes two methods as examples of the "correct legal form". The question that arises here is that: By these two methods, is it possible to create a right with particular characteristics required in that general rule, so as to be able to jurisprudentially correct the common key money deals in accordance with the law, or not? By analyzing the jurisprudential foundations of these two methods, it becomes clear that no one can create a right to be transferable and legally demandable to the rate of the day. Therefore, the two methods mentioned in the Law of 1997 aren't competent to jurisprudentially correct the common key money deals, and are inconsistent with that general rule.

This paper analyzes the ambiguous matters of substituting goodwill i.e. its consistency or inconsistency with the ecclesiastical law, its subsistence, and having or not having the right for transferring the lease to others. Then under the heading of the right for key-money, analyzes the key-money as an amount of money separate from the rent, the meaning of the phrase “the right for demanding the key-money in updated rate”, non-continuation of the lease after the expiry of its period in the key-money of the first kind, possibility of cancelation of the base lease of the key-money, and the manner of extending the lease; and after comparing the goodwill with the key-money relying on the discussions made, it has concluded that the right for the key-money is not a suitable substitution for the goodwill. As a result, the latter which has been proved as not against the ecclesiastical law, must be returned to the legal system.

The laws that regulate the relation between the landlord and tenant are amongst the most important of laws of every country. As well, the discussion concerning goodwill and the right to business and trade are among the important topics that relate to how a shop or store may be rented. Goodwill which is one of the important topics in legal, jurisprudential and economic spheres is a special type of intangible asset that represents that portion of the entire business value that cannot be attributed to other income producing business assets, tangible or intangible. The nature and literal and technical meanings of ‘goodwill’ need further research and investigation so that in the analysis concerning the various types and manifestations of goodwill the rule concerning permissibility or impermissibility of receiving or charging goodwill may be precisely and properly examined from the viewpoint of prominent jurisprudents.

“Dastarmy” or “Dastdarmi Right” is a common law which is belonged to the Northern region of Iran And particularly has been common in Mazandaran, and is also called “Karafe” and “Tabartarashi”. “Dastdarmy right” is accepted in these areas as a certain norm and transactions relating to it is common between people. “Dastdarmy” is in group of land dependent laws and is directly taken from the norm and custom which controls the relationship of landlord and farmer in agricultural land. This common concept has been recognized and confirmed in some rules explicitly or implicitly, and also there are several votes in Judicial procedure which confirm it. From Material View Dastdarmy is a financial right which is Very similar to the right of business or profession or trade in commercial places.

While the putting a place of business out to lease is a subject matter which is common in trade and the goodwill، it is a familiar for the both lawyers and merchants. Those matters are not so common and known in respect of e-stores. In this article the attempt is done to light up these subjects، present a legal analysis thereof and to show they are a separate matter of other similar subjects in IT Law like the cyber-squatting. In recent matter، the other''s trade mark is used in domain name without his consent that could be settled through ICANN''s regulations.

Vertical agreements include those contracts which are entered into between the holders of the valuable commercial right like name, trademark and/or special process of production or distribution and another party in vertical line in order to cooperate in various commercial levels, and by virtue of which the first party shall grant the licence of marketing, sale or other his economic activities to another party. These contracts have involved the most rate of agreements in commercial and economic exchanges and expansion of knowledge and technology, and all are established in a unified principles which one of them is the Goodwill Principle. This was admitted in international law in general and in international commercial law in particular. And, a vast rate of duties and tasks like trusteeship, good performance, accurate information, financial soundness, etc. were inflicted to the both parties of a vertical agreement. It is herein dealt with the effect of the goodwill on these agreements and outcomes resulting therefrom.

In modern law, the unconscionability of contracts has become a basis for vast intervention of government in contracts law. Upon this basis, some protective rules were legislated for protection of the consumers’ rights and preventing misuse of stronger economic situations and anti-competitive actions. Although, the elements of contractual unconscionability are not as clear as it necessitates. These legal systems have pursued different approaches. The American Law has presented the general theory of the unconscionability of contracts. In some legal systems of European countries, the applicable and operative system has a special place in which precise and particular examples of the unconscionable contracts are considered. On the other hand, the Iranian law has not dealt with the elements of this case. Thus, studying various rules, one can merely achieve few of these examples. It is required for the Iranian legislator to take a certain position for stabilizing the concept of contractual unconscionability, determining the obvious regulations, elements and examples thereof.