Payame Noor UniversityCivil Law Knowledge2322-17124220160220Lien, consequences And mutual interest contracts in exchange contracts:" A comparative look at the Imamyah jurisprudence and the Iranian civil law"
Mohammad Hasan Haeri, A’zam AminiLien, consequences And mutual interest contracts in exchange contracts:" A comparative look at the Imamyah jurisprudence and the Iranian civil law"
Mohammad Hasan Haeri, A’zam Amini1102689FAJournal Article20150302 <br />Lien is the right of recoupment by one party until liability fulfillment by other party. This right becomes binding in exchange contracts such as: sale and rent (lease). The main criteria for separationg them from non- exchange contracts is commitment and confrontation between parties, such that if one of these two is removed, the contrant will not been of exchange type. In addition to describing A major reason for conducting this research is investigation of the lien enforcement domain and lacking of its application for sale as well as highlighting its effects and consequences in mutual interest contracts from the viewpoint of jurisprudents. The research method is librarian and by using of appropriate. <br />In this writing we described lien. Results showed that enforcement domain of the lien is not limited to sale contract; rather it involves other contracts such as rentand mutual interest settlement. Some of its consequences are its deposition on the lienclaimer andlacking of need to bring a suit and the court sentence for enforcing it <br />Lien is the right of recoupment by one party until liability fulfillment by other party. This right becomes binding in exchange contracts such as: sale and rent (lease). The main criteria for separationg them from non- exchange contracts is commitment and confrontation between parties, such that if one of these two is removed, the contrant will not been of exchange type. In addition to describing A major reason for conducting this research is investigation of the lien enforcement domain and lacking of its application for sale as well as highlighting its effects and consequences in mutual interest contracts from the viewpoint of jurisprudents. The research method is librarian and by using of appropriate. <br />In this writing we described lien. Results showed that enforcement domain of the lien is not limited to sale contract; rather it involves other contracts such as rentand mutual interest settlement. Some of its consequences are its deposition on the lienclaimer andlacking of need to bring a suit and the court sentence for enforcing it https://clk.journals.pnu.ac.ir/article_2689_bfa18f2a9f1cdab8de422847b17656e2.pdfPayame Noor UniversityCivil Law Knowledge2322-17124220160220Some Observations about Derivative Action from Perspective of Procedural Law
Ali TahmasebiSome Observations about Derivative Action from Perspective of Procedural Law
Ali Tahmasebi11222690FAJournal Article20150222 <br />Policymakers seek to protect minority shareholders through designing various procedural and substantive legal rules. The protection is done by miscellaneous ways including derivative action which has been accepted in many legal systems such as USA and England, and Iran’s law has accepted it in joint stock companies so that has let one fifth of shareholders file a lawsuit in the name and on behalf of company against directors and managing director that has damaged company by their own default. Nonetheless the scope of agent’s powers is not obvious in Iran’s law and it is not clear if the shareholder(s) can withdraw his statement of case or claim? In the case of being many litigant shareholders, their unanimity is necessary to make a decision about various issues of trial such as demand to refer to expert, appeal, settlement etc? Can they ask court to issue writ of execution and taking relief? The existence of one fifth shareholders is only essential to bring a claim or its continuity is required? Principally the answer to these questions should be clarified in Code of Civil Procedure, the mentioned code, however, does not have any injunction on these subjects. <br />Policymakers seek to protect minority shareholders through designing various procedural and substantive legal rules. The protection is done by miscellaneous ways including derivative action which has been accepted in many legal systems such as USA and England, and Iran’s law has accepted it in joint stock companies so that has let one fifth of shareholders file a lawsuit in the name and on behalf of company against directors and managing director that has damaged company by their own default. Nonetheless the scope of agent’s powers is not obvious in Iran’s law and it is not clear if the shareholder(s) can withdraw his statement of case or claim? In the case of being many litigant shareholders, their unanimity is necessary to make a decision about various issues of trial such as demand to refer to expert, appeal, settlement etc? Can they ask court to issue writ of execution and taking relief? The existence of one fifth shareholders is only essential to bring a claim or its continuity is required? Principally the answer to these questions should be clarified in Code of Civil Procedure, the mentioned code, however, does not have any injunction on these subjects.https://clk.journals.pnu.ac.ir/article_2690_05d21121d7f7f459242cd22595ca4868.pdfPayame Noor UniversityCivil Law Knowledge2322-17124220160220Evolution in the Law System of Protecting of Unsupervised Childre
Ahmad Rezvanimofrad, Mozhdeh ZafariEvolution in the Law System of Protecting of Unsupervised Childre
Ahmad Rezvanimofrad, Mozhdeh Zafari23352691FAJournal Article20150601
Adoption is a legal institution under which a legal relationship between the spouses or the single guardian is created with the adopted child. Adoption has quite a long history in human lives, as it was customary at the time of Ignorance and the adopted child has been granted all the rights and duties of a real child. With the revelation of verses 4 and 5 of the Ahzab chapter, adoption lost the sense that it had during the time of Ignorance; however the concept of adoption was approved in Islam.
In Iran, the law to protect unsupervised children was passed in 1974, and this law with the new title "Law for the Protection of Children and Adolescents, Orphans or with Irresponsible Parents" was amended and the former Act was repealed in 2013. According to this law, families without children or single women over thirty years old can adopt children or teens, either orphans or with irresponsible parents, if the conditions prescribed in the Act are provided. After sentencing the adoption, certain rights and duties such as child custody and alimony are set between the parents and the child. But they are deprived of some other rights including inheritance, which according to the provisions of Article 14 of the mentioned law, this problem is remedied.
Inserting the sentence of adoption in the birth certificates of both the foster child and the guardian according to Article 22 of the aforementioned Act, and licensing the marriage between the guardian and the adopted child expressed in Article 26 of the same law, are Among the defects and problems of this law which are in conflict with the main purpose of this Act, in Article 1, the material and spiritual needs of children and adolescents. The writer according to the proclamations of some jurists, opinions of lawyers and psychological and sociological damages, has offered a remedy for the latter problem and has suggested the removal of this note and banning of such marriages.
Adoption is a legal institution under which a legal relationship between the spouses or the single guardian is created with the adopted child. Adoption has quite a long history in human lives, as it was customary at the time of Ignorance and the adopted child has been granted all the rights and duties of a real child. With the revelation of verses 4 and 5 of the Ahzab chapter, adoption lost the sense that it had during the time of Ignorance; however the concept of adoption was approved in Islam.
In Iran, the law to protect unsupervised children was passed in 1974, and this law with the new title "Law for the Protection of Children and Adolescents, Orphans or with Irresponsible Parents" was amended and the former Act was repealed in 2013. According to this law, families without children or single women over thirty years old can adopt children or teens, either orphans or with irresponsible parents, if the conditions prescribed in the Act are provided. After sentencing the adoption, certain rights and duties such as child custody and alimony are set between the parents and the child. But they are deprived of some other rights including inheritance, which according to the provisions of Article 14 of the mentioned law, this problem is remedied.
Inserting the sentence of adoption in the birth certificates of both the foster child and the guardian according to Article 22 of the aforementioned Act, and licensing the marriage between the guardian and the adopted child expressed in Article 26 of the same law, are Among the defects and problems of this law which are in conflict with the main purpose of this Act, in Article 1, the material and spiritual needs of children and adolescents. The writer according to the proclamations of some jurists, opinions of lawyers and psychological and sociological damages, has offered a remedy for the latter problem and has suggested the removal of this note and banning of such marriages.
https://clk.journals.pnu.ac.ir/article_2691_865b1699b5fe68aebcc64a40b81f7701.pdfPayame Noor UniversityCivil Law Knowledge2322-17124220160220The Longitudinal and Transversal Relation of Coercion Right and Termination Right under the Effect of Breachof Term
JafarAsgari, Mohsen EsmaeiliThe Longitudinal and Transversal Relation of Coercion Right and Termination Right under the Effect of Breachof Term
JafarAsgari, Mohsen Esmaeili36432692FAJournal Article20150601 <br />hand, even some of the jurists, stating the accuracy of innominate contracts, did not consider these agreements <br />under pactasuntservanda and proposed the aim of their stipulation for obtaining the irrevocability. Hence, the <br />subject of conditions got prominent role in Iran’s law which follows Shiite jurisprudence and it was reflected <br />under an independent chapter in Civil Code. <br />The requirement of ss. 237, 238, and 239 of Civil Code is, if the breach of affirmative term happened, the <br />innocent party cannot terminate the contract at first, but he only would have the coercion right to the other party; <br />moreover, on the second step he could take measure to terminate the contract if the essential requirements met. It <br />means that the remedy of coercion right and termination right are not in transversal relation. The major question <br />is whether we cannot abjudicate to the transversal relation of the coercion right and termination right under the <br />breach of term by considering the analysis of decisions, statements of jurists and legal writers, and the stage of <br />terms in contract law i.e. can the person in whose favor the term made utilize the termination remedy as soon as <br />the breach of term happens? It seems, the Shiite jurists has accepted this point of view by reference to the rational <br />proof, principle of harm, and the basis of the analysis of implied term under the contract law. <br />hand, even some of the jurists, stating the accuracy of innominate contracts, did not consider these agreements <br />under pactasuntservanda and proposed the aim of their stipulation for obtaining the irrevocability. Hence, the <br />subject of conditions got prominent role in Iran’s law which follows Shiite jurisprudence and it was reflected <br />under an independent chapter in Civil Code. <br />The requirement of ss. 237, 238, and 239 of Civil Code is, if the breach of affirmative term happened, the <br />innocent party cannot terminate the contract at first, but he only would have the coercion right to the other party; <br />moreover, on the second step he could take measure to terminate the contract if the essential requirements met. It <br />means that the remedy of coercion right and termination right are not in transversal relation. The major question <br />is whether we cannot abjudicate to the transversal relation of the coercion right and termination right under the <br />breach of term by considering the analysis of decisions, statements of jurists and legal writers, and the stage of <br />terms in contract law i.e. can the person in whose favor the term made utilize the termination remedy as soon as <br />the breach of term happens? It seems, the Shiite jurists has accepted this point of view by reference to the rational <br />proof, principle of harm, and the basis of the analysis of implied term under the contract law.https://clk.journals.pnu.ac.ir/article_2692_536a2da37d3de14da7a096ddef63ebf2.pdfPayame Noor UniversityCivil Law Knowledge2322-17124220160220A different justice based on an inadequate law; contradictory judicial ruling
interpretations on commercial documents
Yousef Darvishi HoveydaA different justice based on an inadequate law; contradictory judicial ruling
interpretations on commercial documents
Yousef Darvishi Hoveyda44582693FAJournal Article20141114
Along with the check law enacted during 1355 and the latter amendments made in it, this law is implemented only regarding the checks whose drawee is a bank. The trade law enacted in 1311 is the most important law in our legislative system that has defined the regulations dominating the commercial documents. This act that is the defected translation of French commercial law of 1807 does not cover the clear and comprehensive rules on commercial documents, for this reason, different viewpoints and interpretations have been presented regarding the commercial documents and different subjects related to these documents. These opinion contradictions caused the non presence of similar judicial attitude on the claims related to the commercial documents and contradictory rulings are given in this context. The present paper is of the intention that most important opinion contradictions should be expressed by stressing on the divergence of judicial ruling related to the commercial documents in which the contradictory judicial ruling has more prominence. In addition, the deficiencies of trade law should be pictured with a different justice that has been issued and enacted by non similar and contradictory judicial ruling regarding the similar and same subjects.
Along with the check law enacted during 1355 and the latter amendments made in it, this law is implemented only regarding the checks whose drawee is a bank. The trade law enacted in 1311 is the most important law in our legislative system that has defined the regulations dominating the commercial documents. This act that is the defected translation of French commercial law of 1807 does not cover the clear and comprehensive rules on commercial documents, for this reason, different viewpoints and interpretations have been presented regarding the commercial documents and different subjects related to these documents. These opinion contradictions caused the non presence of similar judicial attitude on the claims related to the commercial documents and contradictory rulings are given in this context. The present paper is of the intention that most important opinion contradictions should be expressed by stressing on the divergence of judicial ruling related to the commercial documents in which the contradictory judicial ruling has more prominence. In addition, the deficiencies of trade law should be pictured with a different justice that has been issued and enacted by non similar and contradictory judicial ruling regarding the similar and same subjects.https://clk.journals.pnu.ac.ir/article_2693_085c6ea6280d115b28e8564f17060cd7.pdfPayame Noor UniversityCivil Law Knowledge2322-17124220160220Necessary and how to determine generic goods
(Comparative study by Jurisprudence, Iran, Egypt and UK law)
Rasoul Ahmadi FarNecessary and how to determine generic goods
(Comparative study by Jurisprudence, Iran, Egypt and UK law)
Rasoul Ahmadi Far59682694FAJournal Article20150103
Determine of Goods is one of the basic terms of contract Pursuant to 190/3 of Iranian civil law. In this article, the determinate of the subject of the contract is not term of validity of contract. On this basis, the present issue topic of discussion in the article is necessary and how to determine the Generic Goods and has been done through the application of the fundamental. Based on the results of the paper determine the Generic Goods inlegal systems is necessary and if not to be determining its cause invalidation of the contract. In Iranian law system Generic Goods can be determine through description or by sample. In Egyptian law apart from determine by description and sample may be specified the Generic Goods through the confession. In UK Law Generic Goods can be determining through the description, by sample or fitness for a specific purpose.
Determine of Goods is one of the basic terms of contract Pursuant to 190/3 of Iranian civil law. In this article, the determinate of the subject of the contract is not term of validity of contract. On this basis, the present issue topic of discussion in the article is necessary and how to determine the Generic Goods and has been done through the application of the fundamental. Based on the results of the paper determine the Generic Goods inlegal systems is necessary and if not to be determining its cause invalidation of the contract. In Iranian law system Generic Goods can be determine through description or by sample. In Egyptian law apart from determine by description and sample may be specified the Generic Goods through the confession. In UK Law Generic Goods can be determining through the description, by sample or fitness for a specific purpose.https://clk.journals.pnu.ac.ir/article_2694_1979c0e44f37fb7fbc5dff75bd5b2846.pdfPayame Noor UniversityCivil Law Knowledge2322-17124220160220The Nature and Specific Provisions of Formation of Murabahah Contract in Iranian Law
Mohammad Soltani,
Hamed Shirvani Zadeh AraniThe Nature and Specific Provisions of Formation of Murabahah Contract in Iranian Law
Mohammad Soltani,
Hamed Shirvani Zadeh Arani69832695FAJournal Article20140601 <br />approving The Fifth Development Plan of Islamic Republic of Iran Code, has entered in legal arena of our country. <br />Proper use of each contract and use the full legal capacity in a legal system primarily requires that tool is correctly <br />identified. Murabaha contract is not exception to this rule. Recently approved Bylaws and Instructions related to <br />this contract, contain provisions which make it inevitable to again careful analysis of this contract. One of the <br />most important provisions can be understood with a glimpse of the total related regulation, is the extending the <br />contract subject to the goods and services. This is not only have us to trying to find the nature of this contract, <br />but also to reflect again with the specific conditions mentioned in the Jurisprudential texts about the formation <br />of this contract.Referring to the jurisprudence texts and regulations, we can understandMurabaha contract - that <br />Jurisprudents described and evaluated it under the contract of sale-naturally is notcontract of sale and basically <br />it is a format contract By which we can be transfer to Contracting party anything obtained from a preveous <br />contract (goods or services by sale contract or non-sales), by adding a certain amount of profit to the amount of <br />the acquisition (Ras al-Mal).So the specific conditions of conclusion of this contract, only guarantee the validity <br />of such transferring practice, not accuracy of the contract nature. <br />approving The Fifth Development Plan of Islamic Republic of Iran Code, has entered in legal arena of our country. <br />Proper use of each contract and use the full legal capacity in a legal system primarily requires that tool is correctly <br />identified. Murabaha contract is not exception to this rule. Recently approved Bylaws and Instructions related to <br />this contract, contain provisions which make it inevitable to again careful analysis of this contract. One of the <br />most important provisions can be understood with a glimpse of the total related regulation, is the extending the <br />contract subject to the goods and services. This is not only have us to trying to find the nature of this contract, <br />but also to reflect again with the specific conditions mentioned in the Jurisprudential texts about the formation <br />of this contract.Referring to the jurisprudence texts and regulations, we can understandMurabaha contract - that <br />Jurisprudents described and evaluated it under the contract of sale-naturally is notcontract of sale and basically <br />it is a format contract By which we can be transfer to Contracting party anything obtained from a preveous <br />contract (goods or services by sale contract or non-sales), by adding a certain amount of profit to the amount of <br />the acquisition (Ras al-Mal).So the specific conditions of conclusion of this contract, only guarantee the validity <br />of such transferring practice, not accuracy of the contract nature.https://clk.journals.pnu.ac.ir/article_2695_42e7e692d4b3bb68002fb41ee4a932ca.pdf