جستجوی مقالات مرتبط با کلیدواژه « Interpretation of Contract » در نشریات گروه « علوم انسانی »

One of the most important issues in contract law is the interpretation of contracts. The parties to the contract may have disagreements in the meaning of the terms and phrases of the contract. The disagreement in the contact faces an obstacle in the fulfilment of contractual obligations and the courts must interpret the contract in order to the settlement of disputes and fulfilment of contractual obligations. The most important purpose of interpretation is exploring the common intent of the parties. Textualists and contextualists both claim to discover the intent of the parties. Textualists take consider intention as the real and true intention of the parties and search for it in the context of the contract. In contrast, contextualists consider subjective intention to be the real and genuine will of the parties to the contract and consider the text of the contract as an incomplete resource regardless of the context in which the contract is formed. Exploring the real intention under the principle of freedom and principle of voluntarism is assumed as one of the most important values of legal systems in the field of contract law in this article. Therefore, the main criterion for evaluating each of these approaches is the ability to achieve the actual intention. The contextualism approach has more ability and accuracy in exploring the real intention of the parties by using extensive evidence. Although the textualism approach is consistent with the real intention of the parties in some cases, it is not very successful in exploring the real intent of the parties due to the limitation of the cited sources. It can be said in this research by relying on descriptive-analytical method and by evaluating the rules of each of these approaches that systems that consider contract as merely a tool to realize economic values in transactions are more inclined to textualism approach; in contrast, in systems in which the contract itself has intrinsic value and the realization of the parties’ intentions has relevance regardless of economic values are more likely to adopt a contextualism approach. Accordingly, in the author’s opinion, ending the unfinished textualism and contextualism struggle depends on examining the value priorities of a legal system in the field of contract law which has been neglected in the research of the last two decades.

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.

Good Faith that is interpreted as the principle of good faith and fair play in law works, expresses a kind of honesty and ethics in legal relations and the necessity of its compliance in the contracts is known as an important principle in achieving various aims in considering how to prepare and set the terms of contracts, establishing the equilibrium and balance in conducts of the parties to a contract, concluding and interpreting the contracts and so on; it has therefore gained a special status in the law of contracts, as well as  the international agreements so that the article 1104 of France new civil code has realized this general principle of good faith. Accordingly, the purpose of this research is to study the status of good faith obligation from the perspective of its various aspects (concept, nature, territory, and warranty of performances) in Iranian and French law. Finally, by studying these cases we will find that in the Iranian legal system something as good faith is not usable as a standalone theory, and the practical criterion in this regard is the authority of the kind emergence (Reliable Emergence Theory).  For the basis of good faith in Iranian law, the requirements of contracts have to be addressed, since the requirement of contract is an agreement as well as interaction. In agreement, the parties try to reach a common goal, and in interaction, they effort to achieve that common goal. So the principle of good faith must prevail throughout the lifespan of a contract.

Totally Arbitration is divided to Voluntary Arbitration Clause and Compulsory Arbitration Clause. Arbitration Clause as a rule Has Contractual Nature .If The Content Of Arbitration Clause For The Reason Ambiguity Has Been Needed To The Interpretation And Arbitrator To Intended Detection Of Common Intention Of The Parties ,Having No Alternative Must To Interpret Of The Content Of Arbitration Clause ,Upon The Principles And Rules of Interpretation Of Contract .But Legislator In Some Cases Imposed On Will Of The Parties Of Contract ,Accepted Of The Arbitration Clause Or Referring Of Claims To The Jurisdiction Of Arbitral Tribunal And Contractual Nature Of Arbitration Clause Has Been Extinguished Or Limitation .In These Cases If Content Of The Arbitration Clause Faced With Ambiguity And Necessitate Of Interpretation, Arbitrator Must Intended To Detection Of The Legislator Will ,Upon The Principles And Rules of Interpretation Of statutes And Discussion Of Detection Of Natural Will And Common Intention Is Ceased .In This Article Interim Of Making Clear Nature And Criterion Of Distinction Of The Compulsory Arbitration Clause ,Causes And Grounds Of Independent Arbitration Clause Necessity From Basic Contract Present By Application Analysis And State Of Some Cases In The Law Of Iran.

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 contractual relationships, the principle is to preserve and continue contractual relationships in order to prevent social and economic losses. This is the basis of the concept of "conversion of contract" analysed by judges by considering the "practical result", that is, economic purposes of the parties within the framework of "social interests". Therefore, the conversion of contract goes beyond the issue of interpretation, since it is justified on the basis of the "socialization of law" approach. In addition, this theory is not in conflict with Islamic jurisprudence (Fiqh), because it focuses on the socialization of law at the level of "the purpose of the contract" and does not seek to regain the basis of the validity of the contract in the social conscience. Therefore, it has been recognised as a legal rule in Fiqh and Articles 144 and 618 of the Civil Codes of Egypt and Afghanistan. In Iranian legal system, it has not been recognized despite its practical implications. Since, the conversion of contract has economic and social benefits and is not in conflict with Fiqh, it can be adopted in the Civil Code by putting various instances under one title.

The interpretation is removing the vague points and brevity of the contract to discover and finding out the intent of the speaker and recognizing the nature and determining the content and effect of the contract. These tasks are to be performed by a judge or arbitrator. In the Iranian Law, the internal intent of the parties has priority and the criterion is the Subjective Test for interpretation of the contract. However, given that discovery of the actual intent is often difficult or even impossible, placed Conventional meaning of the words and acts as a criterion to interpret (Article 224 of the Civil Law), unless it is proved that the real intention of the parties, has been on the contrary. Article 8 of the Convention on the International Sale of Goods, in interpretation of the contract, has accepted the combination of both subjective and objective tests. Accordingly, in the first understanding of the common intention of the parties is placed criterion and if by reasonable reasons, it would not be established, then, the contract shall be interpreted in accordance with the objective test. Namely, for removing the vague points and brevity of the contract, the contract is to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. This research, attempts to analysis the role of usage in the interpretation of contracts in the Convention on the International Sale of Goods Act 1980 and the Iranian law.