نشریه پژوهش های حقوق تطبیقی
سال هفدهم شماره 4 (پیاپی 82، زمستان 1392)

to the customer in unauthorized sales. The present article aims to answer the question through a study on Islamic jurisprudence، as well as the laws of Iran، Egypt and France. The results showed that customer compensation is obscure and unclear in Iran laws، and a precise criterion has not been presented for determining it، and the judicatories have not a single procedure in this regard. In Egypt laws، customer compensations include: the value of the object of sale at the time of discovering the evidence of unauthorized sale، lawful interests of the price of the object of sale from the time of discovering the all expenses of the contract، all costs of the object of sale، and all trial expenses. Finally، according to France laws costumer compensations include: the price of the object of sale at the time of dispossession، expenses of the contract، costs of the object of sale، and trial expenses. The comparison of the above sources offers some criteria for customer compensation in unauthorized transactions based on Iran laws: claiming contract expenses and also the expenses related to the object of sale، the price of the contract at the time of discovering the evidence of unauthorized transaction including its lawful loss from the time of discovering، claiming the possible obtainable interests، and trial expenses.

One of the new innovations in Commercial Bill is codification of relatively comprehensive regulations regarding the merger of corporations. The anti-assignment clauses found in many contracts are crucial provisions for the parties looking to transfer their rights and obligations through merger. In the U. S. A.، the courts and statutes in different states are split on the effects of merger on non-assignment clauses. Under most state corporate merger statutes، a merger serves to vest all assets and liabilities to merging and surviving corporations by operation of law، and not by (voluntary) assignment; this does not cause violation of non-assignment clauses in any cases; however، some other courts take the opposite view، holding that all assets and liabilities vested to these corporations are done so by assignment. A third group of courts takes a more moderate view. They are of the opinion that if a merger is accompanied by a demonstrated increase in risk or hazard to the third parties، assignment by merger is prohibited. Current Iranian laws and regulations، specifically the Commercial Bill، are silent in this regard. What is understood from these laws and regulations is that merger constitutes assignment of all assets and liabilities، and as a result، merger is a violation of non-assignment clauses.

Battle of the forms is a situation in which one party sends the other an offer based on their commercial standard terms or while negotiating، refers to the form that contains its general conditions، and the other party، instead of explicitly accepting the conditions within the sent form، would rather send the first offer or the form on which its general conditions have been written or refer to the form incorporating its own general conditions through negotiation. Then both parties would attempt to perform the contract، without clarifying which form’s conditions govern the contract. There are various perspectives in the national and transnational legal systems regarding whether basically there is possibility of concluding the contract in this case due to non-conforming offer and acceptance، or given the contract was concluded، what conditions would govern it. In this paper، the approaches of some national legal systems (England، France، China، U. S. and the Netherlands)، as well as some international instruments، specifically the Principles ofEuropean ContractLaw and the UNIDROIT Principles of International Commercial Contracts have been examined with regard to the battle of the forms. To wrap up the points and discussions presented in this paper، the authors have deduced that، on the subject of the contract’s fate in the battle of the forms، the legal systems of England، France and China have complied with the traditional rule of “Last Bullet”; the legal systems of U. S. and the Netherlands have abided by the “First Bullet” rule، and the Principles ofEuropean ContractLaw and the UNIDROIT Principles of International Commercial Contracts have conformed to the “Knockout” rule.

Option contract is one of the financial derivatives used to manage and control risk. Some doubts have affected its application and usefulness in Islamic financial markets. On some grounds such as wagering on future prices، jeopardizing the capital and acquisition of a windfall wealth، the lack of intention by parties to create a legally binding contract، and the lack of legitimate cause for acquisition، etc.، the critics regard the contract as gambling and a void one. This article shall، by contrasting the option contract with gamble in Iranian and English legal systems، conclude that these doubts derive from the characteristics peculiar to option contract، on the one hand، and from the critics’ in acquaintance with option contract and gamble، on the other. Therefore، the similarities between them are only superficial، and the two contracts differ materially from many aspects such as their nature، subject-matter، function، purpose and rules.

The patents’ term prolongation through protecting the new detected uses is the problematic matter that has been seriously attended by the developed countries in recent years. Iranian legislators’ uncertainty toward the subject within the respective legislatures illustrates the legal importance of taking a stance، which is consistent with the primary principles of patent law and international obligations. The present article، aiming at finding a comprehensive approach، surveys the legal status of the mentioned emerging issue at three levels i. e. international (Trips agreement)، regional (European Patent Convention and Andean Union)، and territorial laws. Based on the findings of this work، the uncontested and primary principles of patent law entail that the new uses either within opponent or proponent jurisdictions must be posed as “process invention”. Accordingly، the opponent jurisdictions via narrowing، and proponent jurisdictions via extending the domain of legal definition of “process invention” shall adjust and restrict the protect ability of these intellectual achievements

Unforeseeable changed circumstances are one of the major problems of parties – especially those who are party to a long contract. None of the legal systems have accepted the performance of contract in new situation. There are various theories to answer these situations. In this article، we choose two important theories، namely Hardship and Force Majeure. Hardship would be defined as a situation in which the contract would be too difficult to perform because of the change of circumstances and occurrence of unforeseeable events. The concept of Force Majeure providing for the discharge of one or both parties occurs when the performance of contract is impossible due to unforeseeable events beyond the control of the parties. The concepts of Hardship and Force Majeure seem to be related to each other، specially that they both cater to the situations of changed circumstances and both of them have some same features. However، there are some differences between them. Hardship occurs where the performance of the disadvantaged party has become much more burdensome، but not impossible، wheras Force majeure means that the performance of contract becomes impossible at least temporarily. Furthermore، there are some other differences such as difference in the effect of these theory. In the theories of Hardship، the contractual relationship will continue with the adaptation mechanisms; but the Theory of Force majuer grants exemption with termination and suspension.

Lack of a clear definition of loss of profit and confusing it with similar concepts has led to its ambiguity. Such ambiguity can be seen in the theoretical analysis as well as in the practices of the courts. This ambiguity persists while the concept of loss of profit has an important presence in industry، manufacturing and trade. Hence this concept has been accepted in the insurance industry in Iran and worldwide. This paper، through redefining the loss of profit and its comparison with similar institutions in the context of comparative studies، gives a clear definition of it، and shows that loss of profit is conceptually different from loss of benefit، loss of chance and economic loss. The study further reveals that the unconditional rejection of loss of profit، loss of benefit، loss of chance، and economic loss is in conflict with the economic، industrial and social realities، and that in certain cases، compensation should be awarded by applying common practice criterias.