نشریه پژوهش های حقوق تطبیقی
سال بیست و یکم شماره 4 (پیاپی 98، زمستان 1396)

The ruling on trades that the seller does not own is one of the most important cases of conflict between Iranian law and the law of the British and France and Germany.In this article with regard to situation of conflict of the interest of the buyer in good faith and the owner, the main approach is to explain the role of good faith in property ownership. the basic criteria for selecting the appropriate rule will appear In the light of the comparative analysis of the constructive role of good faith in the transactions and different legal systems approach towards it. Key factor in the conflict of interests between the owner and the original person and how to identify a good basis of support from the buyer in good faith in the legal system relying on the foundations of legal systems is different. on one hand, the common feature of the rights of England, France and Germany is the promise of the transfer of ownership by some examples of goodwill transactions on the other hand, differences in the laws and doctrines in the legal environment of the countries as well as in the judicial process make the subject matter complex in the comparative debate. After analyzing the main source of Good faith-based rules in Europe, from the point of view of economic rights (in other words, analyses that are consistent with commercial necessities), the essential factors in identifying the desired principle, the rules of the transactions are dealt with and the necessity of adopting such views is explicitly stated.

Through the development of the law principles in natural law and positive law we cannot see any organized way or specific formula for making rules. Therefore it’s difficult for each of these school of thoughts to justify their rules for even their own followers let alone the opponent. Different nations used different method of Development of the law principles which we’ll review them in this paper and will try to introduce a method which is based on Islamic legal system. In this method, which we call it “problem-decision system”, every social disorder and individual wrongdoings regarded as a “problem” that we need to respond to it by a proper “decision”. In this approach decision cannot be merely an abstract will but it must have the ability to solve the problem accordingly.

There are many discussions about Remedies on breach of performance of contractual obligations and liability of the breach in various contributions. Promissor often perform his obligations but the other party does not and the question is what is the position of law and justice about it and what are the consequences. Are the promissor have liability and exchange guaranty about promisse or the liability will be removed by acceptance of promisee. In this article, this topic is examined in Iranian law, shia jurisprudence emphasis on European Contract Law and CIS. The authors concluded that although, promissor, contrary to examined legal documents and Art.273 of Iranian civil law, In situation of non performance of promisee, have to render it to authorities or their deputies to exempt from exchange guaranty despite the fact that this Article originated from Imamite jurisprudence, in copmarison to CISG and principles of Eurpoean Contract Law have strengths and weaknesses. Art.273 is complimentary and parties are able to choose between examined approach or other approaches.

Currency future contracts are agreements for purchasing and selling a determinate scale of an asset (foreign exchange) for the delivery in the specified future in exchange of a determinate price at the time of the contract’s conclusion. In this paper, while clarifying structure and features of Currency future contracts in the capital market as well as necessity of its implication and efficiency and venture of such contracts, we have tried to dismiss any doubts on the validity of Currency future contracts in respect of their offer and validation.

Exclusion clauses which appear in the form of limitation clause and nullify clause of liability of committed, although they are considered consequential obligations but this group of clauses contain all principal obligations. These clauses contain all range of obligations (including the contract and off – contract) and have influenced them and study of these influences in contract law are consequential. Although in jurisprudence under the old theory of "impossibility of nullifying the non- existence", acceptance of these clauses is difficult but on clause of acquaintance of defects or retiring commitment of husband on future alimony, we can find traces of admission of such clauses. Although in Iranian law, there is no specific regulation in this area, but there can be find from dispersed sections that legislator, except in exceptional circumstances, has warranted the validity of such clauses, but there’s a different approach in English law, whereas in addition to dynamic precedents in the field of exclusion clauses and existence of various cases, the legislator by passing special acts such as "unfair contract terms act 1977" has developed diverse, useful, dynamic and significant rules in these context that study of such acts can be useful for Iranian juristic and legislator.

Succession institute in contract law of French legal system is based on the personalization of the commitments principle, promissory nature of contracts and the existence of the asset as an legal entity. Despite that most of the civil law scholars accepted succession with same functions and definition in French legal system; but it seems they justify this legal institution according to different principles and foundations. In Islamic jurisprudence only the heir can be considered as successor and function of succession in contract law is the continuity of contract and impossibility of dissolution of it by the heirs after the death of the testate according to principle of irrevocability.

The question of When to use criminal intervention or non-criminal intervention is a matter that has been discussed in criminalization debates. As the matter of the fact, Principles of criminalization clarify which behavior in cyber space could be considered a crime. some of the principles that this process is based on - like harm and autonomy principles- make obstacles in accordance to limitation of the scope and moral justification of the criminalization. But some other principles like legal paternalism and considering public interest widen the scope of criminalization. Overall, these principle as a model of reference, determine what behavior should be out of the sovereignty of the state. This paper seeks to answer questions like to what extent Iranian and German criminal system under the influence of the principles of criminalization of cyber crimes, consider criminal interventions in regard to cyberspace conducts? To what extent Iranian laws can use German criminal laws achievements? Findings indicates that German legislator tended toward a liberal approach in criminalization of cyber crimes which is based in individualism and belief in freedom of the human conducts and harm principle which means that unless a conduct has a grievous harm toward another being, it should not be a crime. And an act can be considered a crime only if there is no other preventive method to control it. But Iranian legislator, although were influenced by the harm principle, with a different interpretation, considered any harm to morality, Islamic and social values as justification of criminalization of cyber crimes which is in accordance with legal paternalism and public interest principles.