فصلنامه پژوهش حقوق خصوصی
پیاپی 28 (پاییز 1398)

In international trade, there are several financing methods which help exporters and ‎importers for buying and selling goods. Forfaiting is one of these methods. It is a ‎financing method in which forfaiter purchases exporters' deferred receivables based on ‎discounting rate and without recourse payment. Type of document, as an evidence of the payment, has an essential role in this commercial ‎contract, since the nature and performance of forfaiting depend on type of document of ‎receivables. While exporter and forfaiter are parties to the financing contract, it isalso  applicable against the debtor, and forfaiter can pursuit importer on due date for the payment claim‏. ‏ Moreover, although forfaiting may be trilateral between forfaiter, exporter and importer ‎in which debtor transfers his debt to financial institutions, in the traditional type of forfaiting, ‎exporter assigns his receivables to the forfaiter. This contract is similar to discounting, ‎negotiation, novation, assignment, selling of debt or the payment claim. It seems that the sale of debt is ‎the most appropriate for this new financing method‏. If commercial papers are used as evidence of the payment, rules of negotiation ‎will be governed in this contract. ‏

This article takes a comparative approach to various Islamic sects and lays emphasis on Shiite references while taking benefit from analytical and descriptive method , and after examining the basis upon which the binding and revocable character of contracts lies and analyzing the arguments presented by proponents and opponents of the binding or revocable character of partnership and presenting contradictory and solving answers to the view holders, leads in the end to the conclusion that considering the vagueness of the civil code and despite the opposing viewpoints of some Islamic jurists and on the other hand, based on the approach adopted by high-profile jurists such as Shahid-e- Sani and Seyed Mohammad Kazem Tabatabaee , known as Saheb Orva and the attention of the article 167 of the Constitution, partnership contract should be recognized as having a binding character as far as its shareholding making aspect is considered and revocable with regard to the fact that partners acquire the right to control and lay hands on the shared property . This trend is supported more by the doctrine as well .

Collective loss is defined as a loss in which it is not attributed to a specified person individually, but to the group of persons, so that nobody can treat himself as a main injured party. In Iranian legal system, although the collective loss is not recognized expressly in statute, but the civil liability rules prove that no loss can be left without compensation. Therefore, in collective loss, being an unlimited group should not destroy the right of claim and demanding damages of the injured parties.  
The necessity of attention to this loss is also emphasized in other legal systems. What makes the acceptance of this loss different is the determination of persons who have the right of the claim and demanding the compensation. There are different policies in the different legal systems, such as the acceptance of representative of some associations and the acceptance of claim by one of the injured parties. By conducting a comparative study under the legal systems of France, United States and Iran, this article will analyse the collective loss and different approaches recognised in different legal systems.

It is common that the avoidance of a contract terminates and renders all provisions, terms and conditions of the contract. Are there any terms or provisions which are not affected by termination? By using the descriptive-analytical and comparative methods, this article aims to ascertain these independent terms which are valid, even though the termination of the contract occures. Some of these terms, such as confidentiality, are valid and apply, irrespective of making a contract.  On the basis of intention of parties, law and usages, termination does not affect contract terms relating to dispute resolution. Nor do those terms that were intended to take effect even in the case of termination, such as confidentiality clause. Those terms are independently valid in spite of the invalidity, termination or avoidance of the main contract.Principles of European Contract Law, UNIDROIT Principles of International Commercial Contracts and United Nations Convention on Contracts for the International Sale of Goods (CISG; the Vienna Convention) indicate such valid provisions. Despite the lack of any provision in Iranian Civil Code, such a provision infers and implies under Iranian Civil Law.

In stock companies, the adoption of the rule of the majority and making decisions on this basis are rooted in political thoughts; however, the sustainability of this rule depends on economic analysis.  From the perspective of economic analysis, an optimal rule is a rule that leads to the realization of efficiency and cost reduction. The rule of the majority amounts to efficiency in a sense that it increases wealth and reduces the cost of decision-making. In turn, reducing the costs of decision-making will increase profits and generate wealth. In addition to achieving efficiency, an optimal legal basis should also lead to equilibrium. In some cases, the rule of the majority results in the collapse of a balance between majority and minority shareholders. Therefore, although the application of this rule in the light of stock companies can be effective, rules are needed to create a balance between minority and majority shareholders. Amongst the rules laid down in this regard, the principle of shareholders freedom in transferring its share and leaving the company could be considered.

In order to avoid making conflicting judgements, and to reduce multiplicity of actions and judicial costs, some institutions such as ancillary and related claims have been considered in Iranian law. Nonetheless cross-claim does not exist, that is, whenever there are two or more plaintiffs or defendants, one plaintiff can litigate against co-plaintiff and one defendant can file a lawsuit against co-defendant. Various institutions have been adopted in U.S Federal Rules of Civil Procedure for joinder of claims and permissive or compulsory joinder of parties. Therefore, the drafters have endeavored, by getting away from common law and based on equity, to prevent multiplicity of cases among parties and adjudicating different aspects of same or common issues of law and fact together. One of these mechanisms is cross-claim by witch whenever there are more than one plaintiffs or defendants in action, one plaintiff is able to litigate against the other and a defendant can start a case against co-defendant on the understanding that there is a logical relation between original and cross claims. This article examines the possibility of using this institution in Iranian Law.

Information inequality of the parties to the contract is known as an asymmetric information phenomenon. This causes two other phenomena called adverse selection and moral hazard that are seen in the banking loans market more effectively. In this paper, the role of collateral against this phenomenon has been examined by considering the economic importance of movable property and the need to use these assets for collateralization and attraction of credit. In addition, the requirement of movable collaterals for playing this role has come to light.  This article argues that the use of collateral will efficiently handle adverse selection and moral hazard phenomena within the Iranian banking loans market, especially with respect to the weakness of the tools necessary for tackling with this issue and will also prevent from accumulation of dues. However, the lack of information transparency and confidence in the security rights within movable property weakens the function of this type of collateral and reduces its potential for collateralization. The creation of a public register system of security rights in movable property as the most effective tool for ensuring transparency and confidence in movable

The principle of independent legal personality of a company creates risks for third parties. It should be noted that most of these risks emerge in dealing with third parties. One risk could be “ultra vires”, because directors may trade with third parties in the position of “ultra vires”. By taking different approaches, different sanctions for these violations could be proposed. The position of English law was to support the company at the beginning, and this led to the invalidation of the transaction. This approach was moderated by the passage of time and through different methods. The 2006 Company Act  considered the “support of the third party” approach with the consequence of eliminating outer effect of ultra vires, creating the trading stability and establishing internal cost of company. In Iranian law, due to deficiency of statutory provisions, different sanctions based on divergent views are provided. It is due, mainly, to the lack of a clear distinction between capacity of the company and its directors’ powers. In Commercial Draft Bill 1391, It can be observed that the continuation of the dispute is foreseeable.

The traditional DBB system is one of the most important Project Delivery Systems. The consultant engineer services are provided to the employer under a contract. However, the nature of the work of the consultant engineer has made it impossible for the consulting engineer to be limited to the territory of the parties and the government, by adopting the rules and guidelines, has a significant share in determining such responsibilities and its scope. The general terms and conditions of the consulting services contracts are among these guidelines. In clause 2 of Article 26 of the aforesaid terms, the responsibility of the consulting engineer toward the employer has been extended to the time after the definitive taking over of the project. An approach based on the nature of the consultant is also considered in the laws of other countries. However, the clause mentioned the term "later" as a criterion for determining the timing of imposing a liability on the consultant engineer. Accordingly, justice and legal rules require that by relying on role of the custom in interpreting the laws, this clause is to be interpreted and the disadvantage should be resolved under the private terms of the contract.
Keywords: Contractual Civil Liability, Consulting Engineer, Client, General Conditions of the Contract, Agreement and Uniform General Conditions of Consulting Service Contracts.

The governments is trying to reconcile between the two Targets to encourage and ‎support foreign investment on the one side and protect of their essential interests on the ‎other hand,Sometimes in conflict with each other, Manage have taken of inserting the ‎condition of exception to the fundamental interests of the host state, international ‎investment agreements which allows governments to invocate essential security ‎interests whenever they wish to restrict or allocate the provisions of the treaty.‎ In contrast, investment contracts listed in stablization clause in order to reduce the ‎risk of legislative,Non-discrimination by granting national treatment and most favored ‎nations behavior,As The most important government's commitment in the face of ‎foreign investment, Along with some other supporting concepts such as the obligation to ‎provide fair and equitable treatment in relation to foreign investment is ‎raised.Supporting these expectations in many cases in conflict and friction with the ‎fundamental interests are preserved.‎ thus, In this article, in addition to analyse the fundamental interests clause in contrast ‎to the standards of investor protection In the practice of international investment ‎agreements, Some arbitral awards issued are also examined.‎

Assignment of contractual rights and obligations is one of the most important and well-known issues in different legal systems. The assignment of contract is recognized in Pre-Sale Building Act ratified in 19/1/2011. The legislator, in articles 17 and 18, specified terms and qualifications mentioned in this article. This article is based on descriptive-analytical method, and strives to discuss principles and standards in assignment contract and its justification in different legal systems. In addition, it also analyzes the assignment of contract in Pre-Sale Building Act. In this legislation, one of the most important terms known by lawmaker is the obligor’s consent for assignment in writing and official assignment. It is crucial that the legislator considered this assignment which has many economic effects and it was a great step for unification of the assignment of contract in the Act. Assignment of contract is recognized separately in uniform law as well as in laws of different countries such as France, but it has not been considered in Iran.