فصلنامه پژوهش حقوق خصوصی
پیاپی 39 (تابستان 1401)

In this article, the conditions and effects of the force majeure in the amendments to the French Civil Code adopted in 2016, in order to use the solutions of the French legislature to eliminate the shortcomings of the Iranian legal system have been studied by descriptive-analytical research method. The main question is what are the conditions and characteristics of the force majeure and what is the criterion for distinguishing them, either personal or relative, and what effect does force majeure have on contracts, contractual obligations and contractual liability? A comparative study of Iranian and French law shows that the inevitability (impossibility of eliminating and repelling the accident) and the unpredictability of the accident, with a kind of relative criterion, and also the impossibility of executing the contract, with an objective criterion, are conditions for the realization of force majeure; But the externality of the accident is not an independent condition and refers to the same impossibility of preventing the accident (not being avoidable). Also, contrary to French law, the Iranian legislature did not anticipate the effects of the force majeure on the contract itself and the contractual obligations, and the effect of force majeure on contractual liability was also incompletely stated, which has led to differences between judicial decisions. Therefore, it is suggested that the legislator, in the form of a Civil Act amendment plan, in Article 227 stipulates the conditions for the realization (characteristics and criteria of distinction) of force majeure and in Article 229, the effects of force majeure on the contract and contractual obligations and compensation for non-implementation or Specify the delay in fulfilling the obligation.

When a contract is not entered into the implementation stage or in the implementation of the work, it stops or does not comply with the contractual terms and conditions and the agreed specification is diverted, the magistrate at the beginning, the arrow is committed to understand and ask him about the breach of commitment and the cause of its deviation from the terms of the contract, so that one can predict his conviction from the beginning. In Iran's law, it is less attentive that the violation of the Treaty may be disabled for non-cooperation of the obligee, while the implementation of qualifier commitment may be on his cooperation. Where the obligee would have to deliver the project's location to establish a workshop, or the client will submit the principles of documents, information and witnesses ' names, or the disease that should be carried out by the doctor before the surgery, all the anath of the implementation of a commitment to the Obligee's cooperation. This cooperation can sometimes be defined as a verb, leaving the verb, submitting the goods or documents, providing services and information, resulting in a lack of cooperation, a contract with a challenge and a bug. Rationals and will logically and the implementation of the contract shall be subject to the obligee's cooperation, but the question is to mind whether this cooperation should be stipulated in the contract or a marriage is concluded or is considered as a contract of marriage and customary equipment. Unlike Iran's legal and judicial literature, the role of the obligee cooperation in European countries ' rights and European legal documents has been approved and various works have been predicted for his non-cooperation.  In this paper, in addition to the legal foundations of such a commitment, the various legal effects of its breach are investigated so that the sum of them can be explained most of the role of this cooperation.

Laytime is the obligation of the ship's charterer to carry out loading / unloading operations within the stipulated time. Determining the exact point when laytime commences is determined by various factors and is important because exceeding laytime would result in the liability of charterer against shipowner and many cases has been formed on this issue in the Common law system. However, under Iranian law, the subject is not addressed and the lack of rules, reveals the need to study the matter. The present article seeks to extract the criteria of commencement of laytime by adopting an analytical and interpretive method and examining the existing judicial case law and arbitral awards under common law system, which is the main origin of shipping law and to study the most important issues around each criterion. The findings of the article, indicate that in general, under the common law legal system, three cumilitive conditions exist, which lead to commencement of laytime when all of the mentioned conditions are met. These three conditions are the presence of the ship at the intended contractual destination, readiness of the ship, and finally the issuance of Notice of Readiness (NOR).

The contract company is one of the complex legislative institutions in the civil law, which has led to the emergence of ambiguities in the society. Despite the intention of the legislator to incorporate a contractual partnership under certain contracts (Al Masami contracts) in Article 571 of the Civil Code, why have none of the aforementioned articles taken steps in accordance with the intention of the legislator, and finally the audience will face the duality of the legislator's mentality with a wrong idea. became; Why has the legislator taken an evasive way to not deal with the contract as a unique and special reason for the civil company? If the legislator does not have an opinion on the existence of a civil company contract, then what is the justification for incorporating it into certain contracts of the civil law? Won't the spread of contract companies in people's transactions double the need to amend the civil law? Discovering a solution to these questions has led to the writing of this article; The author believes that the social necessity of heavy means due to the pressure of the society's need forced the legislator to establish the company in terms of certain contracts. However, since it could not benefit from the influence of contemporary jurists' thoughts with the formulation of civil law, and in fact, it has been caught in a limbo in the analysis of the civil partnership contract. There will be no doubt in using the contract as an exclusive reason for the realization of the civil partnership (whether in tangible or intangible property) and the mixing of properties is not necessary because the partnership will be realized without obtaining a share in the property. However, this operation with the credit of the partners will be the reason for the contract to be fulfilled, and there will be no need for a separate action, and the function of the contract will be both a reason for spreading and giving permission and permission to seize the property of the company.

The degree of corporate insolvency varies significantly between enterprises. However, a formal classification of these insolvency degree is missing. Additionally,  the appropriateness of available proceedings with different degrees of bankruptcy is still a matter of active debate.  In this article, we first introduce three distinct stages of insolvency, namely the third degree (likely), the second degree (final), and the first degree (critical). We then perform a comparative analysis of Iranian and French law to study the extent to which judicial interventions match the introduced degrees of corporate insolvency. Iranian law provides a wide range of procedures for third-degree insolvency, including ″trade insolvency″ ″immediate settlement″, ″temporary control″, ″halt prevention″, ″production support″, and ″preventive scheme of arrangement. ″ French law, on the other hand, provides mechanisms for ″alert″, ″ad hoc representative″, ″compromise arrangement″, ″conciliation″, and ″safeguard proceedings." In the second degree case, both countries offer proceedings for ″scheme of arrangement″ and ″reorganization planning; ″ however, their logic and executive processes differ. Finally, for the first-degree insolvency, both countries ultimately end in liquidation proceedings.

The administrative authorities deal with the mistakes and dispute in Registration of Documents and Estate, namely, the supervisory boards and the Supreme Council, including administrative courts that play an essential and important role in the outcome of the records. In this research , the current status of these references has been investigated and the reasons their inefficiencies are: Prolongation Checking the Files Send, Ignoring the principles of independence and impartiality, Disregard of producer tools and control tools in Impartiality in the said discretion ago, Lack of access to court for reasons such as lack of attention to the principle of the right to be heard, Has been analyzed and Finally, the necessity of reviewing the jurisdiction and scope of these authorities has been concluded the most important of these is the establishment of a Supervisory Board in all Registry Units, The creation of a new authority known as the Provincial Supreme Council of Document Records in the Provincial Document Records's General Offices and delegating the current powers of the Supreme Council of Document Record to the This Council and expanding the jurisdiction and duties of the Supreme Council of Document Records established by the State Register of Property and Documents.

This article seeks an appropriate response to the issues that the parties to international shipbuilding contracts struggle with and they are lawsuits arising from disputes related to the manner of risk distribution in these contracts as well as the variety of associated cases and their referral to arbitration tribunals or international courts. Identifying existing or perceived risks in international shipbuilding contracts and the quality of management and distribution of these risks among the contracting parties have a significant impact on the life and survival of the contract and on achieving the desired result and the ultimate goal of the contract. A wide range of financial, legal, political, technical and economic risks are involved in the contract, the distribution of which must also be detailed. besides, national, regional and international legal rules and requirements in the field of maritime standards restrict and regulate the freedom of will of the parties. The main risks include design, technical or qualitative risk and financial risk. The effects and guarantees of each of these risks vary and the way out of them should be foreseen in the clauses of the contract or other similar documents in the light of the principle of sovereignty of the will and it should also be specified which party bears the burden of these risks. Risk, as the case may be, is borne by the party to the contract who has the greater capacity, power and from technical, legal or financial point of view has the capacity to compensate and procure it. Depending on the case, the design risk is borne by the design provider (owner, builder or design consultant), technical or quality risk is borne by the builder until the end of the warranty period, and financial risk is borne by the financing applicant