Scientific Research
MohammadRasou Ahangaran; Mahdi Saeedi
Volume 5, Issue 2 , February 2017, Pages 1-24
Abstract
Abstract One of the principles dominating the private contracts between individuals is the principle of the supremacy of will or the liberty of contract. This principle is considered as one of the main discussions of the contract law. According to this principle, the contracting parties are free ...
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Abstract One of the principles dominating the private contracts between individuals is the principle of the supremacy of will or the liberty of contract. This principle is considered as one of the main discussions of the contract law. According to this principle, the contracting parties are free in choosing the other party of the contract as well as the shape, form, amount, and conditions of the contract, lest limited by law, good behavior, or public order. Although the shape and form of some contracts have been specified in the civil code, the contracting parties can draw upon the liberty of contract principle to choose a form and shape other than the fixed contract. Article 10 of the civil code of the Islamic Republic of Iran is the main supporter of the liberty of contract principle. Regarding the Islamic law, the jurisprudents have extracted numerous proofs and arguments from the Islamic traditions and texts and have introduced them as the principles of the liberty of contract.
Scientific Research
Cyrus Heydari; Paria Zarin
Volume 5, Issue 2 , February 2017, Pages 16-26
Abstract
Abstract Although temporary marriage has a lot of similarities to permanent marriage, it has its own conditions and characteristics. One of these characteristics is necessity of determination of term. Legislator of Iran hasn’t defined any provisions for maximum duration in temporary contracts. ...
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Abstract Although temporary marriage has a lot of similarities to permanent marriage, it has its own conditions and characteristics. One of these characteristics is necessity of determination of term. Legislator of Iran hasn’t defined any provisions for maximum duration in temporary contracts. The purpose of this essay is to distinguish the power of parties in determination of maximum period in temporary marriage. It tries to answer this question: does being long-term effects the legal status and nature of temporary marriage? Based on general legal principles and study of religious sources, we should say that parties are free to determine maximum term of temporary marriage. Therefor being long-term doesn’t alter legal status and nature of temporary marriage by itself.
Scientific Research
Mohammad Hassan SadeghyMoghadam; Meysam Musapour; Jalal SoltanAhmadi,
Volume 5, Issue 2 , February 2017, Pages 27-40
Abstract
Abstract
In order to boost the capital market, finance, and absorption and accumulation of small and scattered funds, various tools and several contracts in different countries are used in different countries. In this regard, also in Islamic countries, in addition to the use of traded contracts ...
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Abstract
In order to boost the capital market, finance, and absorption and accumulation of small and scattered funds, various tools and several contracts in different countries are used in different countries. In this regard, also in Islamic countries, in addition to the use of traded contracts in financial markets of America and some European countries such as futures and options contracts, new contracts were developed within the framework of Islamic criteria in addition to the traded contracts in financial markets of America and some European countries such as futures and options contracts. One of these contracts is “parallel salaf” that has been formed to eliminate restrictions and obstacles of salaf exchange, especially the impossibility of selling the futures goods before maturity that prevents creation of the secondary market and funds absorption. “Parallel salaf”, as a strategy to be presented in the Securities and Exchange market, has taken a new shape, and has been defined as “the standard parallel salaf contract” under specified and certain criteria whilst the dynamism of the stock exchange and more participation, management and hedging transactions will be carried out. By investigating in Islamic Jurisprudence texts, objections and doubts can be raised about “the standard parallel salaf contract”. The novelty of this contract and the need to adapt it with Jurisprudential foundations - despite the absence of jurisprudential and legal sources - necessitates explanation of this contract and removing explanation of its ambiguities and legal objections in order to increase efficiency and synchronization with our country’s rights. In this article all objections to “the standard parallel salaf contract” will be raised and answered.
Scientific Research
Taher Ali Mohammadi; Ahmad Oliayee
Volume 5, Issue 2 , February 2017, Pages 41-48
Abstract
Abstract
Intellectual ownership is an instance of mankind,s innovations. Although discussions about it have a relatively long history, it has just recently been taken into serious consideration in the present age in Shiite jurisprudence. Raising this topic in communities of jurisprudents has ...
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Abstract
Intellectual ownership is an instance of mankind,s innovations. Although discussions about it have a relatively long history, it has just recently been taken into serious consideration in the present age in Shiite jurisprudence. Raising this topic in communities of jurisprudents has led to different perspectives by different jurisprudents. Some of them have respected it just as they respect property ownership and some have not given any value to it including Imam Khomeini. Due to the spread of information through the Internet, quick and easy access to a lot of information and the possibility of some individuals making use of other persons, works and achievements, conducting this study seems to be necessary. This piece of research which adopts a descriptive analytical method, investigates Imam Khomeini,s perspectives and reasons and compares them with the reasons provided by the jurisprudents who believe in intellectual ownership and concludes that Imam Khomeini,s perspective is apparently more accurate.
Scientific Research
khirilah hormozi
Volume 5, Issue 2 , February 2017, Pages 49-58
Abstract
The provisions related to ancillary action, joining a third party to dispute, and action for summoning of third party and counter claim, are mentioned in civil procedure code of Iran, from article 130to article 143. One of ancillary actions provided in civil procedure is the action of third party intervener ...
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The provisions related to ancillary action, joining a third party to dispute, and action for summoning of third party and counter claim, are mentioned in civil procedure code of Iran, from article 130to article 143. One of ancillary actions provided in civil procedure is the action of third party intervener (article 130th of civil procedure code). The actions of third party intervener are divided into two types: first the actions of original third party intervener, and, second, the actions of accessory third party intervener. Most of the researches have studied the actions of original third party intervener, and have paid no more attention to the accessory action of original third party intervener. Also the role of the accessory third party intervener and the limits of his/her authority in original or accessory actions are not considered by lawyers and judicial precedents. Furthermore the position of accessory third party intervener against the other ancillary actions hasn’t been mentioned. So the aspects of actions of accessory third party intervener have stayed ambiguous. This research attempts to describe the action of accessory third party intervener. Its position in and its influence on original action and other ancillary actions are studied in this research too.
Scientific Research
gafar noori; erfan khosravani
Volume 5, Issue 2 , February 2017, Pages 59-68
Abstract
The Freight Forwarders are one of the institutions that are active in the field of transportation. They are more active in the field of international commercial transportation, especially combined or multimodal transportation. To show the About the importance ...
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The Freight Forwarders are one of the institutions that are active in the field of transportation. They are more active in the field of international commercial transportation, especially combined or multimodal transportation. To show the About the importance of this institution, shall tell importance of this institution, one may say that in transportation process, using the services of these institutions is essential. Despite the important role of the Freight Forwarders in the transportation industry, unfortunately, puts doubtsthere is ambiguity about the nature of the obligations and responsibilities that exist, so that the institution is paralleled considered as an equal to the ones in charge of transportation with the same responsibilitiesin the carrier considered and responsibility for the same Carrier been raised. Also about the bases of Freight Forwarder>s liability, iIn different legal systems various and sometimes vague approaches have been adopted various and sometimes vague approachesabout the bases of Freight Forwarder>s liability. This can be caused by a lack of international conventions, weak legislation and silence of regulations relating to the transport. This study is trying to examininge The bases of Freight Forwarder>s contractual liability on the two different approaches (Presumed-fault and Strict liability), and in different regulations, including regulations of FIATA , and secondarily on the Llaw of different countries like Iran, England, France, Belgium, Italy and Spain are examined. Finally, it is significant that the «Presumed-fault» as the minimum approach is acceptable, of course, exacerbate the bases of Freight Forwarder>s liability with regard to the specialized nature of this institution, is tenable. theThe research in this paper is a crossmethodology is descriptive and analytical.
Scientific Research
Ahad Gholizadeh
Volume 5, Issue 2 , February 2017, Pages 69-83
Abstract
Abstract
This analytical research shows that in the Code of Civil Procedure Act there is a hidden principle entitled the singleness unity of proceedings’ principle. According to which this principle whole all the stages of the trial i.e. proceedings of first instance, objection to ex parte ...
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Abstract
This analytical research shows that in the Code of Civil Procedure Act there is a hidden principle entitled the singleness unity of proceedings’ principle. According to which this principle whole all the stages of the trial i.e. proceedings of first instance, objection to ex parte judgments, appeal in appeal courts and in supreme court, and even proceedings in retrial do in fact a single trial. Even when a judgment or warrant of lower stages is abrogateds in upper stages what principally happens later is in adherence with what has been done in previous stages and plays an improving role. As a result, principally what the way has been closed for it in the former stages would not be admissible in the upper stages and what the way is open for its admission in the upper stages, principally the way has as well been open for its admission in the lower stages. Some cases are out of this principle’s scope. Impossibility of presenting or collecting new documents or evidences, impossibility of adding thea claim or changing the claim’s or defensesthe manner of defense or changing the claim, impossibility of moving dilatory pleas by claimant or defendant, and impossibility of manipulating the appeal’s claim, are on one hand are of the reasons and on the other hand are of the consequences of this principle
