نشریه دانش حقوق مدنی
سال دهم شماره 2 (پیاپی 20، پاییز و زمستان 1400)

People expect to achieve the economic goals of concluding contracts in the light of the support provided by the principles and rules of contracts' law. Safeguarding contractual expectations is not enforceable unless the law can prevent opportunistic behaviors aimed at changing the allocation of contractual funds and prevent victimizing legitimate contractual goals and expectations. In carrying out this task, contract law can play an important role by relying on the principle of good faith as a general and flexible principle in this research, while exploring the concept of opportunism in the law of contracts and the economic justification for the need to combat it, we will outline the unique ability of good faith in preventing opportunistic behavior.The content of this study shows that goodwill assignment has an important role in preventing opportunistic behavior, and it is therefore necessary to pay attention to the rights of contracts in any legal system.

One of the topics that has many applications in Islamic jurisprudence is the issue of confiscation, which jurists have many discussions Regarding its concept and scope, on the other hand, the issue of forcible seizure has been considered in the laws of civil procedure and the Islamic Penal Code. Now, the important point is whether there is a need for confiscation despite the prediction of the forcible seizure, and what is the logical relationship between these two establishments from a jurisprudential and legal point of view? According to the obtained results, we will see that in the confiscation, convergence can be seen between the definition of Shahid Thani and Hanbali and Shafi'i jurists But in law, there are divergences between the two.

The harmless rule is one of the indisputable rules of jurisprudence that is supported by both narrative and rational arguments; Of course, there are several opinions about the provisions of this rule, such as the prohibition of damages or the need to compensate damages or the royal order or the need to take decisions to prevent damages or deny the damages sentence, etc .; The effect of this rule on social affairs and sharia rules related to urbanization is undeniable; Given that there are various manifestations of this rule in matters relating to the city; It seems necessary to study the effectiveness of the no-harm rule in the development of Islamic cities; The present study, with an analytical-descriptive method, first examines the validity and provisions of the no-harm rule and opinions about it, and then examines the impact of this rule on urban development phenomena; Finally, it can be concluded that according to the harmless rule, all the factors that endanger the various dimensions of development in cities; It is forbidden in Islamic jurisprudence and this rule takes precedence over the rule of domination. Therefore, citizens are obliged to respect the rights of others in civil matters such as the construction of multi-storey buildings or common walls or the construction of structures outside the building or presence in public thoroughfares or windows overlooking the neighbor's house, and if these matters lead to harm to the community; It is forbidden according to the jurists.

In U.S there are two types of counterclcompulsory and permissive.In the first one the defendant must submit all the claims arisen out of the transaction or occurrence that is the subject matter of the claimant's claim as counterclaim otherwise his claims would be the subject of res judicata.In Iran by the wording of the article 141 of Civil Procedure submitting the claims arisen out of the same occurrence or transaction or the claims that have complete connection with the main claim as a counterclaim is permissive.Most of commentators view the expression “the same cause” in aforementioned article as unnecessary and useless.Since the reason for consolidation of claims is to avoid conflicting decisions on the same matter and there might be claims arisen out of the same occurrence or transaction still have no connection together. But it seems that above-mentioned expression has an important function.Because making decision on every claim is a consequence of the decision about the occurrence and transaction of which the claim is arisen out.So if claims arisen out of the same occurrence or transaction are submitted in separate cases, that might lead to conflicting decisions.so these type of counterclaims should also be compulsory in Iran.

In the legal system of Islam, in order to strengthen the family system, rights and duties are of interest to the parties to the marriage, one of these rights is the right to a woman's alienation, the subject we are discussing in this article is that in the later sentences of the couple to the alimony , The famous jurists believe that the wife should wait for it and not have the right to terminate or divorce, while many jurists, if the couple refuse to pay alimony, have ordered the couple to spend on divorce or divorce What is the difference between the two issues, which has been issued differently? Will the result of both of these do not harm women and deprive them of legal and legal rights. In this article, while explaining and analyzing different perspectives, the famous view has been criticized, and the result is that the theory of divorce governing the rest of the opinions is more justifiable and stronger, even the evidence presented for the theory of termination of the woman or ruler can also result to give.

Determining the currency of contracts is one of the most important issues in international trade agreements which can be a guarantee for the enforcement of obligations between the parties. The determination of currency in international relations is affected by several relations, such as legal, political, economic and etc., so having sufficient knowledge in each of these areas is essential to determine the currency of the contract. In this research, an attempt has been made to examine the legal aspects in order to determine the law governing the contract currency more than other aspects and In the meantime, the question that may arise is that in case of non-determination of the currency of the contract, what will be the criterion for determining the law governing determination of the currency in litigation in international commercial arbitration, including the issue of compensation? Therefore, in this study, an attempt has been made to examine the various dimensions of determining the currency, the conditions for not determining it, the current arbitration awards and related issues and finally, a solution has been proposed.

Reliance interest is one of the triple contractual interests which can be claimed by the claimant after the defendant’s breach of contract. The reliance interest occurs when the  plaintiff changes his position and spends some expenditures due to the reliance on the defendant’s performance of his contractual obligations but the defendant’s breach causes these expenditures be wasted. The object of awarding damages in this situation is to put the injured party in as good a position as he was in before the contract was made. The injured party can claim his reliance interest instead of his expectation or restitution interests. Although the reliance interest has not expressly mentioned in Iranian law and Fiqh-e-Emamiyeh, but there are some instances that could be considered as examples of reliance interest.

The Singapore Convention on Mediation is a multilateral treaty established by the International Trade Commission (UNCITRAL) that provides a uniform and efficient framework for the implementation of settlement agreements on mediation.The study of the mechanism envisaged in the Singapore Convention for the identification and implementation of mediation agreements, together with a description of the scope and implementation of those agreements, as well as the grounds for refusing to grant relief to implementation within the Singapore Convention, suggests that the Singapore Convention and the Model Law on Mediation are a response to concerns about insufficient guarantees of the implementation of settlement agreements on mediation. First, the courts recognize and enforce dispute settlement agreements without the need to sue for breach of contract. Second, eligible agreements are deemed to have been judged under the Convention. It is also appropriate for countries that do not have a mediation law like Iran to ratify the Singapore Convention along with the 2018 Mediation Law or similar provisions.

Process of establishment of contracts and their foundations, should be proportionate to the evolution of the economy. Contract is an obligation and should be with highest efficiency, benefit and satisfaction. Each of these things has many levels and in every age finds its own meaning. Foundations of contracts, such as validity, satisfaction, no loss and no legally foolishness, are relative and contain numerous degrees. A contract may be efficient, accurate and effective at a time and be void in other times. One person also may be legally foolish in one contract but grown in other. This paper reveals that each meaning must be consistent with the same period of time. This paper is an analytical text and its Hypothesizes that for any foundations should refer to specialist practice and normal practice would induce to static and unchanging.

Group legislation is a tool to formulate micro-claims in a collective way. until the claim is left unanswered and public confidence in the judiciary will be strengthened. this tool by reducing costs, optimal use of time and efficiency of the judiciary facilitates people's access to their rights.  one of the most important problem of competitive claim is low interest of the people to make a claim. The most effective institution to solve this problem is Group legislation. among the legal systems raised in the field of competition law U.S law system has accepted competitive collective claims. EU paved the way with enacting directive 2014/104/EU. In Iran law system, despite numerous and ambiguous regulations in the case of collective litigation, the Law on the Implementation of general principles of article 44 of the constitution implicitly accepts a collective lawsuit to compensation for competitive losers.

Most of the assets and property resulting from usury and bribery crimes are taken out of the territorial territories of countries and access to them is generally associated with many problems. However, if they access this property by returning it to the country where the crime took place, the issue of their Kurdish expenses arises. Countries usually punish perpetrators of public bribery with imprisonment and fines. While there are no transnational anti-bribery laws in many countries - the present study concludes that there are weaknesses in anti-bribery mechanisms in terms of Iranian banking law compared to international instruments. One of the weaknesses is the more focused attention to public bribery than private bribery. Because criminal law in modern law tends to provide more protection to public property than to private property, Damage to property implies a loss of citizens' trust and confidence in the ruling forces and as a result a threat to public welfare. He pointed out the elimination of conflicts between existing laws, effective support for informants of corruption, reform of the banking system, especially transparency and public access to the allocation of banking resources and expenses.

Different countries according to their legal system, each one assigns various definitions and examples to domicile, personal status, and nationality. For prevention of these disputes, the Hague Conference on Private International Law Organization, therefore, with the aim of uniformity of the rules of private international law, has decided to determine competent law and provide a unit definition of domicile by setting the Convention of 1955 relating to the settlement of the conflicts between the law of nationality and the law of domicile. Despite that, the domicile in English law and American, is the main factor of communication and even in French law it has been accepted as a secondary law, but in Iranian law this communication factor is not accepted as to the personal status as a secondary rule and in the case of stateless. Therefore, relating to these persons according to Article 7 of the Civil Code on the application of national law to the personal status of aliens, there is no choice, except les fori. In Iranian law, the only case that law of domicile, instead of law of nationality, can be determine competent law the personal status, it is envoi to Iranian law. While the principles of non-discrimination based on the necessity of applying, the same law to persons who lives in the territory of a state in some cases require the applying law of domicile. Therefore, in order to enforcing justice and preventing wasteful application of the lex fori, the acceptance of communication factor of domicile as a secondary rule especially in cases of personal status of stateless persons in our legal system is suggested.