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

There is a difference of opinion regarding the irrevocability or revocability of gift in Imami jurisprudence and Iranian law. There is also no provision in the relevant laws. Given that the irrevocability or revocability of a contract, including a gift contract, has very important effects; it is necessary to conduct research in this field. In this research, descriptive-analytical method and sources of valid jurisprudence and law have been used to address this important issue. In order to analyze the principles of the irrevocability and revocability of the gift, the basic evidence should be provided. In this regard, there are many differences between rescission and revocation and other evidence, such as the verse of Quran “fulfill your obligations”, the principle of the irrevocability of contracts, the impossibility of revocation in the gift contract, in the capacity of the legislator, not unplanned changing of the contract from revocable to irrevocable, as well as the inapplicability of the principle of revocation to the irrevocability or revocability of the gift is examined. The result was that the gift contract should be separated from two aspects, one in terms of revocation and another in terms of irrevocability and revocability. Based on this, the gift contract is a revocable contract, in which the principle of revocation is valid.

Today, due to the Internet development, legal relationships of persons have been changed insofar as the subject of many contracts is advertising in cyberspace (especially in Instagram). Analysis and explanation of the causes of advertising contracts' termination and its effects on contract as well as parties commitments, is among this research purposes, so that the parties to advertising contracts, as the main cyberspace players, will know their rights and obligations. Advertising contracts, as promissory contracts, are terminated from the occurrence moment of dissolution causes (i.e. mutual revocation, cancellation and automatic cancellation). Therefore, their effects are stopped and parties' obligations are canceled. In dissolution of an advertising contract containing a specific performance commitment, before any performance, costs of procurement can be collected from client's prepayment or paid sums and after performance, according to circumstance, it will result in fair equivalent remuneration or specified payment. Dissolution of the advertising contract including a subsidiary obligation performance will entitle the obligor to remuneration and for those obligations in favour of third parties, depending on the existence or non-existence of the object of property; it causes the transfer of the object or exchange of the property to the obligor, respectively. Dissolution of the advertising contract containing the obligation to omission makes the obligor entitled to remuneration, provided that the conditions for fulfillment are met. This research is done through descriptive-analytical method based on library method and examining the existing texts and resources

In the basics of contract law, the principle is that the parties to the contract are required to fulfill their obligations and any change or withdrawal from the contract requires the agreement of the parties or the existence of one of the legal termination cases. Despite the fact that contracts are binding in some cases, the obligee may have the right to terminate the contract without the obligee's agreement, in order to avoid undue damages caused by the obligee's breach of contract. This right is called the right of initial termination of the contract. The right of early termination of the contract is a right that exists for the obligor without the prior obligation of the obligee to perform the obligation and obligate it to perform the same contract. This right is of special importance for the obligee because it gives him the right to waive his contract and release his contractual responsibilities if necessary. Iran's civil law is silent on the issue of termination for breach of contract, and according to Imami jurisprudence, the principle is that the right to terminate the contract is given to the obligee only with the agreement of the parties or the existence of one of the legal cases of termination. However, some jurisprudents, in certain cases, have believed in granting the right to early termination of the contract to the obligee, including the cases where the termination is justified, the following can be mentioned: if the obligee fulfills his obligation in a way to put the obligee at risk or if the obligee has a long-term delay in fulfilling his obligation. Among the jurists of Imamiyyah, there is no unanimous ruling on the execution of obligations or having the right to terminate, and in Iranian law, granting the right to early termination of the contract to the obligor, in order to protect his rights and interests and to reduce the amount of damage and to have proof of the negation of the damage is on the principle of necessity. It can be proved in some ways. For example, if the concluded contract contradicts the laws and regulations of the country, the obligee can have the right to terminate the contract early. According to international documents such as the Convention on the International Sale of Goods, the principles of the law of international commercial contracts, as well as the principles of the law of European contracts, the right of initial termination is accepted in the event of a fundamental breach of the main obligations. In the common legal system, the right to terminate the performance guarantee is a breach of contractual obligations, and the right to early termination of the contract to the obligee may be less seen due to the limitations that exist in these systems. In this system, due to the existence of strict laws in the case of keeping contractual obligations and adhering to them, the right of early termination of the contract to the obligee is less than in Imami jurisprudence and Iranian law. In the Roman-Germanic legal system, the right of early termination of the contract to the obligee depends on the terms of the contract and legal laws. The country may be restricted. In this legal system, more attention is paid to maintaining contractual obligations and communication with the obligee, and for this reason, the obligee's right to early termination of the contract is less than Imami jurisprudence and Iranian law. Paying attention to the comparative study of the feasibility of granting the right to early termination of the contract to the obligor, in Imami jurisprudence and Iranian law and common law and Roman-Germanic legal systems, it can be concluded that in these systems, the right of early termination of the contract to the obligee depending on the conditions of the contract and the legal laws of the country, they may have a more limited scope of implementation. In this research, the right of initial termination of the contract in Imami jurisprudence and Iranian law is compared to the common law and Roman-German legal systems with a case study of the laws of England as a subordinate country. The legal system of common law and France and Germany, two countries subject to the Roman-German legal system, have been comparatively examined. In English law, the right of initial termination is accepted in case of violation of obligations or the main conditions, and in French law, initial termination is also accepted in cases of violation. A serious obligation is subject to the obligee's notice, warning, and the expiration of the additional period. In German law, the exercise of the right of initial termination for the obligee is subject to the passage of time. A group has considered that the obligee is entitled to force the obligee to perform just by breaching the contract, which is the famous opinion of Imamiyyah jurists. Another group has preferred the right of rescission over coercion, and another group of jurists, like Imam Khomeini (may God bless him and grant him peace), have considered the obligee as benevolent in the acts of rescission or coercion, believing that the right of rescission and the right of coercion are the same. Various approaches have been adopted in Iran's laws, although the judicial procedure in this field is quite clear and gives priority to enforcement over termination of the contract.

According to Article 391 of the Civil Code and the unified judgments 733-1393/07/15 and 811-1400/01/04 of the General Board of the Supreme Court, if the sold things has been determined as belonging to another, the sale contract is null. Therefore in case of unawareness of the buyer, the vendor must pay the difference through price which is paid as consideration and the actual value of the sold object on the day of sale as compensation in addition to returning the price. The apparent interpretation of the aforementioned provisions limits them to the nullity of the sale contract due to unauthorization regarding the owner's rejection. But firstly it’s good to know that nullity causes damages in other types of contracts rather than sales. Then it should be known that nullity can be caused by reasons differing from the cause of belonging to a third party. Thirdly, must be said that the contract may cause damages not in terms of nullity, but in other types of dissolution. This research aims to answer the question whether it is possible to apply the provisions related to the damage caused by the nullity of unauthorized sale to other cases of nullity and dissolution of all contracts or not? And assuming the answer to the previous question is positive, what are the examples of the implementation of the aforementioned provisions? The collection of information in this research is library-based and the method of presenting is analytical.

In different dimensions, the consolidation of Articles (66) and (72) of the Direct Taxes Act confronts several difficulties, including when property transactions are not considered valid in terms of taxation? and how these transactions may be revoked or rescinded? What is the meaning of revocation in accordance with the decisions issued by the judicial authorities? The problem is that our judicial system acknowledges definite property transactions which, contrary to the Article (48) of the Registration Act, are concluded without drawing up a notarial document, but the tax administration office does not accept this matter according to remarks of the Article (53) of the Direct Taxes Act. Although this perception is true, it has several adverse effects, for example until the date when the notarial document is not made, the seller is legally considered as the landlord and he/she must pay property rental tax. On the other hand, there is no such issue in relation to the assignment of the right to goodwill, because most authors, in particular after the enacting of the Landlord and Tenant act, accept the assignment of the right to goodwill merely through an offer and an acceptance. This research is based on a descriptive-analytical method and addresses the articles (72) and (67), accordingly, some suggestions are provided to the Islamic Consultative Assembly to pass the mentioned problem. Although this perception is true, it has several adverse effects, for example until the date when the notarial document is not made, the seller is legally considered as the landlord and he/she must pay property rental tax. On the other hand, there is no such issue in relation to the assignment of the right to goodwill, because most authors, in particular after the enacting of the Landlord and Tenant act, accept the assignment of the right to goodwill merely through an offer and the acceptance. This research is based on a descriptive-analytical method and it addresses articles (72) and (67), accordingly, some suggestions are provided to the Islamic Consultative Assembly to overcoming the mentioned problem.

In Iranian and American law, Restitution; as the most important effect of rescission, has been determined similarly antecedent to rescission. In iranian law, first, islamic lawyers has recognized rescission as the basis of restitution and analyzed their effects while in American legal system, due to some problems and lack of unified judicial procedure, lawyers and some theorists in last years has recognized rescission as the basis of restitution. Moreover, rescission has based on two theories in iranian legal system; Bilateral Consent and Do No Harm (LA ZARAR). In the other hand, American legal system has been based on unjust enrichment theory. In this article, first, the process of recognition of the right in two legal systems has inspected and later, the base of rescission has compared between two legal systems. The process in two legal systems (although the process in American law has happened with a long historical distance) demonstrate that due to lack of coherent theory about rescission and thereupon lack of unified Judicial procedure in common law, law theorist coming close to general theory of rescission in written legal systems

The transactions of physical market in Iranian commodity exchanges –both “Iranian mercantile exchange” and “energy exchange” which include sale of goods and derivatives as futures and options - consist of spot, credit and short sale and governed by its specific regulations. Although this mentioned transactions are instances of sale contract and according of Iranian law, the title of goods is transferred when the sale contract is concluded but the obligations which derived from them is significant. The obligations of parties and liability of broker and principal according to commodity exchanges regulations are studied andanalyzed in this article. Although In this transactions, principals are engaged indirectly but they also have rights and obligations so that they can preclude the conclusion of contract. In this transactions specific performance as main contractual remedy in Iranian law is loosed. Instead of, rescission, termination and compensation are remedies that referenced by SEO regulations and directives.

Civil law has known each of the rescissions transferable to heir after the death of praepositus. This opinion has been attributed to jurisconsult's consensus but recent research will show that claim of being consentant of this judgement conflicts with disagreement of well-known jurisconsults in rescission of inheritance 1.Husband for wife, 2.Condition for alien, 3.primogeniture for except of big son, 4.session of sale with death of one of the parties of contract. Since the main way of validity and nullity deliberation of juridical issue is studying itsevidence so it should be studied juridical scope of evidence in inheritance option so that standpoint of twelve shiite muslims law acquires and presents from evidence in it. Recent article wants to do this and it has done it with the method of inference from valid sources of twelve shiite Muslims law and on the strength of library method. This subject-matter is important finding of this research.

Despite the necessity of the principle of binding contracts and respecting the contractual obligations in the legal systems; the effect of social and economic circumstances on the possibility of the fulfillment of the obligations over the period of signing to fulfilling of the contract is undeniable. In fact, contracts are signed under presumably normal and predictable circumstances, however in case of unpredicted and unusual circumstances preventing the fulfillment of the contract obligations; the obliged party is exempt based on the law of different countries including Iran. Nevertheless there is no concrete solution if the unusual and unpredicted circumstances cause excessively severe difficulty or unconventional loss yet allowing for the fulfillment of the contract obligations. Here aided by the principles of “No Distress and Constriction” and “No damage” it is possible to give the right of adjusting or reviewing the contract to the parties or the judge or recognize the option of rescission of the contract for the parties.

When someone accepts an obligation and bears its responsibility, it’s expected that the other party would also fulfill his/her obligations. When one of the parties refuses to perform the contract on their own volition, the prevailing theory in Iran’s law is that the judge, by the promisee’s request, will force the refusing party to deliver goods or perform the contract’s obligations in proportion to the issue. If the compulsion on the contractual party was not effective, the beneficiary of the contract could perform the contract’s subject at the promisor’s expense in the contracts, which do not rely upon people’s personalities, and if all these tricks did not work, it would be the turn to rescind the contract. However, in most legal systems of the world the right to force the promisor by the promisee and the right to rescind the contract are beside each other. In Shiite jurisprudence, there are firm and cogent views that prove the right to rescind the contract along with the right to force the promisor to perform the contract for the promisee in the case of the promisor’s refusal to perform the contract. There is no stipulation of rules regarding this issue in Iran’s Civil Code. In fact, there is no general rule in this respect, but this matter has been mentioned in the conditions chapter and some legal articles. Most Iranian lawyers are inclined to the Linear Theory (first compulsion then rescission) in the course of performing a contract, but the Transverse Theory is also provable based on the generalities of the Civil Code.

There are different methods of compensating the promisee for the breach of obligation under the Shiite Jurisprudence, the Iranian Law, and some important international commercial mechanisms. These should be distinguished from preventive measures for avoiding obligation breach. The remedies stated in the Iranian Legal System and also the mechanisms mentioned above could regularly be categorized as “common remedies” and “special remedies.’ By common remedies one means those that have been set forth in the international mechanisms and the Iranian Law, such as requiring specific performance of an obligation. On the other hand, special remedies are those that have been laid down explicitly by international mechanisms and have not yet been incorporated into the Iranian Legal System, for instance the reduction in the price of goods. In addition, in some cases, several remedies arise as a result of the breach of contractual obligation which, regardless of their legal or contractual origin, some consistent ones could be implemented simultaneously. A majority of important international mechanisms such as the Convention on International Sale of Goods, the Principles of European Contract Law and still some others, have explicitly recognized the general rule of the cumulativeness of remedies for promisees. These are different from their Iranian counterparts. However, the approaches taken by the above mechanisms are not turned down by the Iranian Civil Code, as their content could be inferred from the wholeness and integrity of the mentioned law. The convincing reason here would lead us to agree with the cumulative remedies as the following in the Iranian legal system: the right to claim payment for delay in contract performance with the right to rescind the contract or the right to specific performance and also the cumulation of the right to claim non-performance compensation with the right to rescind the contract.

Although one of the public judgments of rescission in Iranian civil law is the possibility of its transfer to heirs of deceased, there is an argument in manner of merit of heirs for inheritance of rescission and quality of its application between jurisconsults. Iranian civil law in its 445 article has only specified the transferable right of rescission of deceased and it has remained silent on manner of merit and application of heirs on it. Hence, an independent research should be carried out in this case to clarify the juridical opinion of issue in this case. Since issues as the manner of merit of heirs from inheritance of rescission and quality of its application from ambiguity and the judgment of issue are not clear, recent article has addressed these issues. It has acquired and presented the issue with the method of inference from juridical text and it has found the solution of both issues in guardianship of heir's kind in inheritance of rescission. This is an important finding of this research.

The principle of importance and strength of contracts and attempt to dissolute it unreasonably is one of fundamental principles for compiling acts and rules, that is, this matter is one of the greatest concerns for compilers of international deeds and documents . An attempt is here to answer this question if violator of fulfilling the contract before cancelling the contract by the person who has the right of option removes the factors which caused the option, the right of cancellation will be removed or not. To answer this question , first of all the views of Shiite jurisprudents and Iranian's legislators has been studied and then a comparative study has been made in three international documents and deeds, that is, convention on international sales of goods' , law principles of European contracts and principles of international commercial contracts for coming to a reasonable result .

One of the voidable contract's issues is proceeding of option in contracts. Jurisconsults have discussed and studied this issue in detail but regretfully the issue of proceeding and non-proceeding option in voidable contracts hasnt been studied and analyzed by jurisconsults and jurists so that a scientific vacuum can be noticed in it. The reason behind the issue is that the scholars of Islamic and Iranian law have supposed that the non-proceeding of option in voidable contracts is a certain issue, while it is not so and there is discrepancy in the issue and it should be studied seriously to remove the existing scientific vacuum. This article seeks to study and analyze the above-mentioned issue and acquires and presents its correct opinion and proof with regard to intellectual analysis and inference from Islamic and Iranian law's sources and this is the most important finding of the research