فصلنامه مطالعات حقوق خصوصی
سال چهلم شماره 1 (بهار 1389)

The court issues Temporary order in the affairs that have emergency state that it may consists of detention of property, doing or undoing an act (Articles of 310 and 316 civil procedure code). Temporary order has some features that distinguish it from the same institutions. This order enforces some limitations to defender of suit without it effects on quiddity of claim. The subject of temporary order must not be correspond with the subject of original claim because in such situation, the plaintiff can receive to demand of original claim with issuing temporary order. The existence of conditions is necessary for issuing temporary order, including giving request for temporary order, paying of trail sums and possibility for renewing of request for issuing this order. In this article, we consider the features and conditions for requesting of temporary order.

The starting point of law and economics movement was marked by publication of Coase's famous paper "the Problem of Social Cost" in late 1960s. In this paper, Coase came up with a theory which is now known as Coase's theorem. In this paper he emphasized on the central role of transaction costs in understating efficiency in the economics. On the one hand, he questioned Pigouvian tradition, and on the other hand, emphasized on the undeniable role of legal rules in achieving efficiency. In this paper we shall first discuss Coase's paper as the foundation of the economic approach to law and then we shall explain the key concepts of this theorem, i.e. transaction costs and externalities. Finally, the paper by giving a different interpretation of Coase's theorem shall reveal the far-reaching effects of public law and private law mechanisms and direct intervention of state in achieving economic efficiency.

According to the well-known view among the Imami jurists, if a sick man marries a woman and die before Coition, his wife is deprived of Dower and Inheritance. The article 945 of civil law also mentions Coition as a Condition for the woman to have a share of the sick man's Inheritance. So, in this paper it is tried to criticize the reasons by people who agree with depriving, in order to reveal the necessity of crossing out the article 945 of civil law, by weakening these reasons and supporting the opposite reasons and availing the situation to remove the discrimination between men and women which the article 20 of constitution points to obviously.

New-a-day, public companies communicate with lots of people who are either into them, as a member of their organs, or are out of them and, by virtue of a contract, sell goods or do a service for. This close relationship will lead to knowledge of those people about company’s inside information. Then, it seems possible that those people, willingly or unwillingly, transfer this information to other members of society. So, different groups will know company’s inside information. The first step for preventing those people from abusing this information is to identify them. In this way, the authors of the article look for identification of insiders.

Judgment of bankruptcy leads to bankruptcy of merchant. Therefore, merchant will be incapable and cannot possess in his asset. Various provisions can be found in commercial code, regarding contract’s of bankrupt merchant, which is inconsistent with civil code. Article 423 has stipulated that trades of merchant after bankruptcy, in three cases will be void. This position is not consistent with civil code which implies that transactions which are against the benefit of merchant is dependent on verification of debtors are invalid ones. The last step to remove incapacity from bankrupt merchant is rehabilitation of bankruptcy. However rehabilitation of bankruptcy of corporate is doubtful. Because of survival of juristic personality until at end of liquidation of a company and general interpretation of “any bankrupt merchant”, rehabilitation of juristic personality is acceptable.

The lot which is used for proving some claims is one of the important rules of jurisprudence and law. It is used by legislators when making a law, religious jurists in deducing the legal rules, and judges in the legal procedure. However, there is a lot of ambiguity regarding this rule which requires a detailed research to make the nature of the lot clear and to answer the following questions: Is the lot a religious or a conventional rule? Are the mentioned instances in jurisprudence and also the made laws restricted or analogical? What are the conditions for the execution of the rule and who is right to execute it? Finally, what is its real place, when it contradicts with other arguments of proving a claim?

Determining marriage portion, more than reasonable amount, by spouses which is not in financial ability of husband, has got legal common problem. The husband is usually undertaken by this kind of marriage portion generally, where as the circumstances indicate that he dosen’t have enough capability to pay it and there is no reasonable possibility for his ability in the future as well. Some authors have already mentioned the invalidity of these types of marriage portions for impossible delivery, but this objection has not been invoked in Islamic Jurisprudence (Fegh). The author believes that the nullity of marriage portion invoked by the above inference may be accepted exclusively by taking some general principles of law, and while considering the probabilities in the issue, the theory of invalidity of marriage portion, which are more than reasonable amount, has been preferred because of impossible delivery.

The cause is the basis of the existence and non-existence of a thing and its consideration is prior to consideration of the thing. In accordance with Subjective Theory, the will is the substance of the contract and the other elements of a contract are conditions of will’s efficiency. In contrast, according to Objective Theory, object of the contract is the substance of it and the other elements of a contract are the conditions of object’s efficiency. These two Theories are based on reasons which comparison of them could make it possible to choose one of them in Iranian Civil Law. Acceptance of each of these Theories has some effects in relation to definition, title, parties and unity or duality of the contract and resort to Correctness Principle.

According to the principle of Severability, in the case of partial breach related remedy is applied only on that part hence other part is valid. In English Law and Convention for the International Sale of Goods (1980) this principle is applied explicitly so, in partial breach, partial remedies are applied in these two laws. On the basis of Jurisprudence Rules like severance, inferred rules of applicable acts including partial rescission and avoidance, the intention of parties and principals of validity and enforceability of contract, severability of contract is proved in Iranian Law. Conflicting Samples are numerable exceptions to it. The Intention of contract parties is the basis of principle which also ascertains the rules and extent of it.

One of contract which is being naturally concluded after appearance and registration of Intellectual Property rights and especially after development of trade marks legal rights and its importance is Franchise Contracts. Franchise Contract is a contract which is concluded between the Franchisor as owner of intellectual property rights, on one hand and franchisee on the other hand which is normally considered for using trade marks legal rights and sometimes for other intellectual property rights related to the franchisor for a limited and determined period of time which is usually 5 years. This contract includes detailed terms & conditions. With attention to this contract is new and absence that in laws of iran, laws nature of this contract is determining of its law traces.

In this paper, we analysis the concept, economic effects, and theories of the protection of property rights. The results of the paper revealed that: 1) There is a consensus of opinions between economists in defining of property rights. 2) Securing property rights can led to accumulation of physical, human, and social capital, increasing savings, increasing economic efficiency, optimal resource allocation, decreasing private and public rent-seeking, and increasing economic growth and development. 3) Responsibility of property rights protection is depend on political, social, and economic conditions, and situation of economic system of a society. The results of this paper emphasized on the importance of institutional economics analysis as a complementary to traditional analysis.

Mistake as a defect in will can be effective when it is related to the consent and intention. Mistake in other phases of will i.e. conception, measure and confirmation is ineffective unless it results in a mistake in consent and intention. Moreover a mistake in every essential affair of a contract does not defect will. It mast occur at least in one of the essential elements of the contract which is related to the intention of parties and the will of the parties in changing and/or interfering or un-interfering the same elements can be effective. Mistake as a defect in will can be effective when it is related to the consent and intention. Mistake in other phases of will i.e. conception, measure and confirmation is ineffective unless it results in a mistake in consent and intention.

Any reasonable person concludes a contract in order to attain (a) purpose(s). It sometimes arises that unforeseen occurrences, subsequent to the date of the contract, make worthless the promisee’s counter-performance for promisor without it has been become physically impossible or impracticability. This situation is analyzed under the doctrine of “Frustration of Purpose” in American law. Nevertheless, there are different opinions as to its existence, foundations and conditions in American jurisprudence. The situation, in which these purposes have subjective aspect, are known as “the cause of contract” in Iranian law but it does not render any express solution in cases of frustration of contract’s cause. This essay will study comparatively this issue in Iranian and American law].

In an era of information technology, businesses, through the use of the boundless Internet, can enter into international electronic contracts from anywhere in the world. The potential for cross-border disputes in electronic contracts is obviously much greater than in a paper-based environment, where a high degree of commercial contracts are domestic in nature. Can the traditional rules on jurisdiction, which are geographically orientated and generally rely on the place of performance, apply to the modern electronic contract disputes? This paper will analyse the EU and US approaches for determining jurisdiction in e-contracting cases and discuss the possibility of proposing specific jurisdiction rules for online contracts.

Some of the jurisprudential reasons which are discussed in the books of principles of jurisprudence are called practical principles (usul-e-'amaliya).. One of the practical principles is the principle of istishab(presuming continuation of the status quo ante).It may happen that those who must apply the justice, while setting disputes or applying civil or criminal statutes, would face with some cases that there are no express for them in the legal systems and codified laws. It is here that those who must apply the rules and judges, with the use of the nature of the laws, judicial precedence and legal doctrines and, in some cases, with respect to practical principles will on the base of them, resolve the problem in question.

In consideration of the commitment of the agent to the contract,Indirect representation is divided in two kind of direct and indirect representation. Indirect representative who acts in the name of himself and on behalf of the principal is bound with the contract himself and is commited to transfer(deliver) rights of the contract to the principal,So indirect representation has an important role in business relationships in consideration of the law of competion affairs and because of the obligations and too many problems of direct transaction between principals and third parties. Because of the existence of some differences between indirect and direct representation in relation of nature and effects in Iranian and European contrac Law,the survey research in this relation will be usefull.

The Law of evidence has seen a Sharp change in Iran since the Islamic Revolution of 1979. The change was mainly made in the form of substituting customary evidence with sharri-ah approved evidence such as witnessing (Bayyenneh) and oath (Ghasam). As to the oath, however, one can reject the idea that it can be taken as evidence in an action involving Legal entities. when an action is attributed to a person, he, himself, might be asked to take oath and so, it is considered as a personal evidence and cannot be delegated. This will generate consequences. These aside, The person who takes oath must qualify certain features and conditions like having believe in God and capacity which are difficult to justify, Particulaly, in respect of legal person?s oath.

In the article 189 of civil code, it has been signed to suspension.But in French from articles 1168 to 1184 there are two suspention: suspension of formation of obligation and suspension of dissolution of obligation.The French authors have proposed that there are the differences between the effects of suspension of formation of obligation and suspension of dissolution of obligation in three times: before fulfilement of evenment, after fulfilement of evenment and after non fulfilement of evenment.In Islamic jurisprudence achievement of contract is necessary. However in Iran suspended contract is one of the contract and examination of effects of suspension is necessary that it has been examined in this article.