پژوهشنامه حقوق اسلامی
پیاپی 41 (بهار و تابستان 1394)

The Restraint of Trade Clause shall be taken in labour agreement to preserve the Client's competition position and restraint the employee from disclosing of the Secrets of Trade and creating some subsequent legal relationships. Since, this clause causes a lot of limitations, shall be subject to several conditions including to: (i) employer's legitimate interests, (ii) determining of the time and place of performance of the clause and (iii) not discrepancy with public policy and social benefits. In the Iranian law, since, Labour Act do not comprise the Restraint of trade clause expressly, we will examine the clause under general rules governing on clauses and obligations. This paper wish to examine the clause and conditions thereof generally then in Iranian Law.

Salaf contract as a kind of sale in Imami fiqh and Iranian law is subject to the specific rules furthermore general rules in contracts among necessity of delivery in the contract assembly and deterrence of sale of salaf goods before overdue. Commodity exchanges established this kind of sale, hence it is necessary to survey that rules and requirements in this markets which its delivery occur after minimum 3 days and the buyers going to sell their goods which bought by salaf contract. The survey of juridical and legal justifications and approaches offered by authors and suggestion of abstraction idea of securities from its underlying contracts is the subject matter of this article. Indeed the issuer of securities by the authority granted by the governmental supervisor make the credital properties and the buyers and the sellers exchange this properties while forgave the underlying contracts and relations; the same role which central banks perform in monetory market.

Unintentional offences are those offences that may be committed by any member of society. On this basis, from early times, whenever an unintentional crime was committed by a member of society, others tried to help him/her; among the methods of helping each other were Relations (Aqele) and Guarantor (Zamen-e- Jarireh) institutions that paid blood money instead of the wrongdoer. The above mentioned institutions, which are also accepted in Islamic Jurisprudence, have found their way into the 1370 Islamic penal code and the 1392 Islamic penal code and they are responsible for paying blood money in certain cases. However, they rarely pay the unintentional crime’s blood money; Relations express lack of financial ability and no Guarantee Contract is formed to compensate the damages. With regard to these cases, it seems that the above mentioned institutions lose their time’s efficiency and a new foundation called "Unintentional Crimes’ Insurance" can be used alongside.

Electronic money is an instrument for Electronic payment Which has nearly all functions of physical money and doesn’t have its disadvantages. Electronic Money has many similarities with physical money but there are many challenges concerning its nature. Bill and physical money like notes, coins and electronic money are used in everyday business. In trades using physical money, the promise will be done immediately after handing the money. For determining this point in electronic payments, we need to explain the nature of electronic money as a bill or a means for electronic payment. If we consider electronic money as bill then by the moment of paying, the promise will be performed and the bank who published the electronic money won’t be responsible in front of those who receive the money, but if we consider it merely as a means of electronic payment, then we cannot say that the promise would be performed by the moment we use electronic money and the bank who published the money would be responsible for the performance of promise. In this research we are going to discuss different approaches concerning electronic Money and finally give a complete and comprehensive approach in order to answer the questions about Electronic money.

One of the challenging issues for the young couples, sometimes leading to deep and harsh differences and argument (between the two parties) is the problem of having a child or not. The major question in law is whether a consequence of marriage, whether each marriage by itself hassush a consequence or whether marriage has no such a consequence per se unless the condition of having a child is mentioned in the marriage contract and the relevant documents. There exist two ideas and theories. First, having a child is the consequence of marriage by itself, and if the couple do not want to have a child, it must be mentioned in the contract wheather expressed or implied. Second, marriage by itself dose not have the consequence of having a child unless it is stated in the contract whether expressed or implied. the present article with an approach towards fegh and law tends to prove this theory that although marriage bt itself has no consequence of having a child, each marriage based on the term implid in act and has the consequence. In other words, it is not necessary to express in the contract, but normally having a child is the term implied in act unless not having a child is mentiond in the contract whether expressed or implied.

The Principle of Autonomy of volition (Will Authority) in Modern Roman – Germanic legal system Means as a Originality of Human will (The parties of agreement) for the legitimacy of the obligations and contracts. This is only the will of the parties of obligation that justifies and constructs the contract. If there is the Constraint, this Constraint is legal constraint, that Roots in The public and National will. Law is Appearance of will in General Arena and the Obligation is Appearance of will in Private Arena. This Approach Roots in Consideration of Human as a "Subject" that was Began in Descarte's philosophy and Culminates in Subjectivism of Kant. Kant presents the Human as a essence Rational, Free, Volitional and Brave to use his reason autonomous. Legal Liberalism believes that the free human with his free will is the positioner of Rights and he is the constructer of obligations with his will autonomous. This Approach Leads to Anti-Formalism, Originality of volition, Non-interference of Government in Private relations, volition as a main Element in the‌ obligations et. However, in Shiite jurisprudence (Imamai fiqhe) the Contract is an Religious Affair and this is the Religion that justifies the contracts (directly or Through vouchsafe the Validity to Rationally Custom). Validity of the Contracts coms from Allah because he is the genuine proprietor of universe and only he can give the Permission of Possession in Property to Servants. This Approach Leads to Formalism and the Originality of the Religion. The main problem of Iran's legal system is that it Attempts to Combine this different approaches. So there is Two types of Articles in Civil law of Iran. The Hypothesis of this Paper Is that The Principle of Autonomy of volition (Will Authority) has not any Compatibility and salubrity with Shiite jurisprudence and Iran's legal system should select between the Principle of Autonomy of volition and Approach of Shiite jurisprudence and should Avoid to Legislative articles Conflicts.

The history of petroleum industry shows that host countries after the virulent experiences in old concession system and international revolutions in the middle of the twentieth century, were appealed to new investment petroleum system. The new investment system has been known as the framework of production sharing contracts. It is believed that the first reason for the appeal to the contractual pattern is that these contracts respect the countries’ sovereignty principle about natural sources. The second reason is that fiscal components in these contracts are flexible and attractive. However, Iran, despite it’s been quite a long time since the Islamic revolution, is dubious about using the production sharing contracts. It is stated that the reasons for this are that first of all Iran’s sovereignty on natural sources will be ignored; and secondly the legal obligations prohibit that. This article legally analyzed sovereignty and main fiscal elements of contracts and explained the optimal feature of these contracts. Then, we explained the applicability of the contracts in Iran’s fields through researching the status of Iran’s petroleum regulations, and finally presented the essential proposal.