نشریه دانش حقوق مدنی
سال نهم شماره 1 (پیاپی 17، بهار و تابستان 1399)

According to Article 140 of the German Civil Code, If the void legal act includes the elements of valid legal act, if the virtual will of the parties is fulfilled by the judge, the invalid legal act will be transformed into the valid legal act. in order to clarify the concept and different definitions of the institution of conversion and to express its independent nature, the distinction of this institution with similar institutions in contemporary legal doctrine is examined. to clarify the concept and different definitions of the institution of transformation and at the same time to express its independent nature, the distinction of this institution with similar institutions in contemporary juridical doctrine is examined. To achieve these goals, a descriptive-analytical approach has been used. Reduction of the transformation process and prevention of the entry of foreign elements into the legal practice are the two main features of this institution that distinguish it from similar institutions such as partial invalidity, Novation, corrections of the contract and qualification. it can be said that the institution conversion legal act is a genuine institution and despite its similarity to some legal institutions, it has a distinct and independent concept

In a contractual relationship, usually the result of non-compliance by one party (whether performing the act or abandoning the action) is damage to the other party, which the Compensation is the consequence of breach of this contractual liability. If the parties do not determine the extent of the damage, whether before or after the damage, The amount of damages must be determined by the court with referred to the expert, In this case, due to a delay in the filing of claim or the length of the proceedings, And changing the value of money and increasing the cost of compensation the Damage Assessment Time will be important. There is no specific rule in Iranian law and various opinions have been raised, such as the time of breach, execution of the contract, issuance or enforcement of a definitive injunction. In British law, as a general rule, the date of breach of contract has been the criterion for Assessment, with some exceptions.

The arbitral institution is one of the entities that determine responsibility. An arbitral institution shall be considered to be an international organization that has international legal personality and, therefore, commits an internationally wrongful act and has international responsibility and for the breach of its international obligations that attributable to it. One of the obligations of the arbitral institution is the obligation to accept arbitration requests. so that these organizations, by generally announcing their arbitration rules, declare their willingness to accept international disputes, and the contracting parties, with the confidence of this fact, will opine them as settlement body for disputes arising from the contract. The refusal of the arbitral organization to accept arbitration requests often deprived the injured party for the right to access to justice. Because, except by agreement of the parties to the dispute, there is no possibility of resorting to the alternative to the settlement of the dispute, and the injured party will probably not be repaired. This refusal, which breaches the obligations of the arbitral institution, gives rise to responsibility.

Articles 62 and 63 of the Statute of the International Court of Justice set out the conditions for third intervention and an intervener state. In this paper, two cases of Whaling in antarctic and Nuclear tests will be studied in order to explain the views of the International Court of Justice and its judges on the conditions of third intervention involvement in environmental cases. The study method in this research is descriptive-analytical and the main purpose of this article will be to establish a relationship between erga omnes and environmental issues with emphasis on expanding the jurisdiction of the Court in accepting third parties. We seek to answer the question of what is the relationship between the interest and the legal nature of Article 62 The Articles of Association have an interest in environmental issues for the international community. Explaining the general interest to members of the international community and the legal nature of Article 62 of the Statute, it was stated in both cases that environmental disputes are not limited to disputes. And the international community has a legal interest in entering these cases as a third intervention. .

In the traditional view, no commitment is made until the negotiations lead to the conclusion of the contract. But these talks are not ineffective and, as the primary basis for establishing legal obligations, can pose risks to the parties. The two parties should be careful about their pre-contractual speech and deeds, as they may take action on the other side and may suffer losses as a result of not closing the contract. The duty of care is a legal obligation recognized in order to avoid such loss and its main principles in the pre-contractual period are: social contract theory, the principle of good faith and trust relations. The duty of care is to drive economic growth, prevent market failure, and expand trading confidence. Despite the discrepancy in the nature of the liability arising from non-compliance with this duty, it appears to be closer to non-contractual liability. Therefore, in order to prove it, the terms of non-contractual liability must be fully met. The background of the duty of care goes back to European law, and despite the existence of defensible grounds, this duty in Iranian and Islamic jurisprudence remains unknown and unregulated. However, the duty of care can be taken from the general rules of civil liability as well as Article 35 of the E-Commerce Act and stipulates its implementation.

One of the questions arising about the contract of transfer of technology in kind is the influence of patent invalidation on the contract. The subject of this contract is a composition of patent, know-how with educational, technical and management helping in a way that make the transferee independent and license to use is a part of contract for its effectiveness. So, it can be said that the subject of the contract is a technology in a body that has a lot of components including patent and its existence increase the value of the subject matter of the contract. So, by patent invalidation (considering of the real monopoly before invalidation) is ceased to exist and by considering the continuous character of the contract, by analogy with the rules of lease contract, the transferee will have the option of Tabaoze-Safghe. Acceptance of option of tabaoze-safghe not only protect the motivation of transferee to challenge the unjust patent and so removing it for protection public knowledge and improper monopoly, but also give the transferee the option to decide about the destination of contract and from other side, guarantee the motivation of inventors to register their invention and making transfer of technology contracts.

For decades, a kind of innovation has been applied and growing, referred to as open innovation. Open innovation is a concept in contrast to closed innovation, which refers to the use of outside resources to accelerate innovation, reduce risks and increase efficiency. In this type of innovation where multiple actors exchange ideas, knowledge and technology with heterogeneous interests, one of the most controversial issues is the role and place of intellectual property. The key question is whether intellectual property principles encourage open innovation or hinder it? And if intellectual property play an effective role in this process, then how will it be able to play its role? In this paper, it is shown by a descriptive-analytical approach that despite different and opposing theories and arguments, a strong intellectual property system can facilitate open innovation. However, due to the shortcomings or legal gaps in open innovation’s intellectual property, it is necessary to use alternative methods that amongst available approaches, defense invention patent model can provide more assurance for open innovation communities.

The use of swap contracts as a new method of trade has become internationally widespread and results tosome important advantages such as reduction of shipping costs, time saving in movement of the goods and elimination of export and import risk. The increasing significance and prevalence of such contracts, give rise to some questions including: what are the nature and characteristic of the swap contract in the Iranian legal system? Is there any similar concept to the swap contract in our domestic law? The present article considers similar legal concepts in response to the questions and comes to the conclusion that swap is an innominate contract under Article 10 of the Iranian Civil Code based on party autonomy. Despite undeniable similarities with barter contract, swap has a particular nature,the subject matter of the contract usually consists of fungible goods and includes special obligations based on mutual agreement of the parties as a general rule. Accordingly, the swap contract has its own specific characteristics, which have been examined in detail.

The feint's dealing is a is a demagoguery's action By some vendors And meanwhile swindling is one of the Debatable topics in Jurisprudence and civil law; the study of The relationship between them And how to run cucumber on each are reasons to write this article; Results from research That by method of Descriptive-analytical Accepted, Expresses that "Deception" is a common element Among in the in feint's dealing and trickery; But unlike of the trickery, the feint's dealing is not Permanent companion of deception; And maybe sometimes in outcome feint's dealing The spirit of the seller or the buyer Affected And in the power stripping of thinking, dealing a merchandise at a hurry and at a different price In case of unawareness Deceived person from the Price of the day and Irrefutable price difference And the lack of reservation the option, Buyer or seller or both Have the right to terminate; as a result between feint's dealing and trickery There is a causal relationship And implementation of option, matching of criteria of option the cheating Is established

One of the important needs of human societies has been providing house and shelter. Applicants of housing usually tried to find people or companies to resolve this problem. In order to achieve this goal, they provided appropriate housing by cash or under special purchasing conditions. In conditional building buying, two sides of the contract sometimes did not take their commitments and they created lots of problems for each other. One of the current contracts in this field is presale building. In recent decades, this type of buying a house has been prevalent in Iran. Lack of appropriate law in this field lead to lots of files about conflicts of contract sides in courts. Therefore, legislator decided to approve a special law for this topic. Finally, the presale building law was approved in Islamic Parliament of Iran in 2010 and the regulation of the law was communicated by the government in 2014. Presale building law prevented some of the offence and fraud that its benefits are stated in this paper. Although this law has restricted house sellers and companies, it is not comprehensive yet. This paper points to lacks, defects and ambiguities of the presale building law and at the end, suggests some items for improvement of this law.

The legitimacy of the testimony of the martyrdom, which is also referred to in the jurisprudence's literature as "the subordinate body", is a definite matter in jurisprudential teachings; Be careful. The reflection of this jurisprudential theory can be seen in Article 1320 BC: "Testimony to testimony is sufficient if it witnesses the principle of death or by any other obstacle such as illness, travel, imprisonment, etc." The provisions of this article, which confirms the famous acceptance of the Imamite jurisprudents, are in fact an assignment to the public and information of authority and infidelity (testimony). The present article, after examining the roots of the famous view, has found two major reasons for this: the alleged consensus as well as the transcriptive documentation of Bob. Research results show that the consensus is due to opposition from the predecessors of the unfinished companions and is at least likely to return to other Shari'a documents; the validity of the evidence cited is in addition to the weakness of the document, in part to deal with some other news Bob, who is considered to be valid according to the rules of the Reichali, is in conflict with, and ultimately assuming, the conflict