احد قلی زاده منقوطای

Introduction:

The Iranian Commercial Code, as originally enacted in 1932 (1311 SH) and subsequently amended in 1969 (1347 SH), draws heavily from the Napoleonic Code and remains largely devoid of Islamic jurisprudence influences. Notably, the term "Unenforceable" is absent from both versions of the code. Instead, the legal framework utilizes the concept of "Valid but Voidable" to describe transactions or actions that lack certain required conditions but are not outright invalid. These transactions can be remedied, preventing them from being declared voidable. This article seeks to explore the nuanced distinctions between "Valid," "Invalid," and "Valid but Voidable" statuses in the context of Iranian commercial law, particularly examining the concept of enforceability and its implications.

 Research Question :

The primary research question this article addresses is: How does the absence of the term "Unenforceable" in the Iranian Commercial Code affect the legal interpretation and status of transactions, particularly in relation to the concepts of "Valid but Voidable" and "Invalid"? Additionally, it investigates whether there is a legal basis for incorporating or substituting the concept of "Unenforceable" within the existing legislative framework.

 Research Hypothesis :

The hypothesis underlying this research posits that the determination of whether a transaction or action is "Valid," "Invalid," or "Valid but Voidable" under Iranian commercial law is significantly influenced by the scope of authority exercised by company representatives. It suggests that actions taken outside the scope of authority may render transactions voidable or invalid, but that the absence of an "Unenforceable" status creates ambiguity. Moreover, the research hypothesizes that it may be possible to conceptually replace or introduce the term "Unenforceable" within the current legal framework, particularly in situations where the legal status of transactions is otherwise indeterminate.

This article adopts a doctrinal legal research methodology, focusing on a detailed analysis of primary legal texts, including the original 1932 Commercial Code and the 1969 Amended Act. The research involves a comparative study of the relevant provisions, considering both the original and amended texts, to understand the legislative intent and the practical implications of the existing terminology. The article also explores the potential for extending the current legal interpretations to cases where the enforceability of transactions is in doubt. Through this approach, the research aims to critically evaluate the possibility of integrating or substituting the "Unenforceable" status within the Iranian commercial law framework, offering a potential resolution to the ambiguities identified.

 Results & Discussion :

The analysis of the Iranian Commercial Code reveals a deliberate avoidance of the term "Unenforceable", opting instead for the concept of "Valid but Voidable" to describe transactions that, while lacking certain required conditions, are not entirely invalid. The research finds that this substitution has significant implications across various aspects of commercial law, not just within company law or the 1969 Amended Act but also within the broader scope of the original 1932 Code. The distinction between "Valid," "Invalid," and "Valid but Voidable" emerges as a central theme, with the latter effectively replacing the concept of unenforceability in cases where a legal or contractual deficiency exists.The study identifies key areas where the "Valid but Voidable" status is applied, such as in transactions involving company representatives who act beyond their scope of authority, dealings with a bankrupt merchant's assets, and self-dealing transactions by corporate officers. It also highlights the doctrinal underpinnings of this substitution, rooted in principles of agency law, which emphasize the need to protect the interests of third parties and maintain the expediency of commercial transactions.Furthermore, the research discusses the retroactive effect of voidability rulings, emphasizing that remedying the grounds for voidability before a court ruling can preserve the transaction’s validity. However, once a ruling is issued, its effects are generally binding on the parties involved but not on third parties who acted in good faith. This discussion extends to the principles of independence of signatures and the protection of good-faith holders, underscoring the complexities of enforceability in commercial transactions.

Conclusion :

The research concludes that the Iranian Commercial Code's approach of substituting "Unenforceable" with "Valid but Voidable" provides a flexible yet robust framework for dealing with questionable transactions in commercial law. This substitution, while safeguarding the interests of involved parties, especially third parties, ensures that commercial transactions remain efficient and enforceable within the legal system. The principle of expediency, vital in the context of commercial law, supports this approach by allowing for remedial measures that can retroactively validate transactions before voidability rulings are issued.

The Partnership Securities’ Issuance Manner Act of 1997 mentions to an agent bank that a guarantee by the partnership securities’ publisher is entrusted to it, so that if necessary, it can on its own initiative pay out of that guarantee the principal, interest on account and realized interest of the partnership securities to their holders. Contrary to the original idea, that bank is thus not the guarantor but the representative, i.e., the representative in paying the above amounts from the ‘fund of guarante’. This agency is also seen in the name that the legislature has assigned to it, namely the ‘agent’ bank. But whose agent is this? Partnership securities’ publisher or holder? Given their designation by the publisher, they first appears to be the publisher’s agen, but more precision shows the opposite; because they take over mortgage (assurance) deposited by the publisher, whereas we know the mortgage must be taken by the mortgagee and principally kept at his disposal, so they are partnership securities’ holders agent. Therefore, the issue arises that considering the partnership securities’ transferability, how can principals change but agents’ representation remain the same? Here it seems that legislature in this case likely, under influence of the other countries’ law, considers agency to be transferable in all cases of agency, brokerage, undisclosed commission, tenure to transportation, commercial representation, and in general, in all forms of commercial agency. Not the binding nature of agency but only its transferability is meant. In this regard, what attracts attention is transferability of agency’s representation (not revocation of agency) with death, incapacitation or change of the principal, but on a case-by-case basis, it can also think about death, the incapacitation and changing the agent.

In various Commerce Act articles use of some rights are limited to a particular period, without determining whether that is time lapse or not. For example, bankruptcy judgment issuance of a merchant who has died in a bankruptcy state, revocating transactions prior to merchant’s payment suspension if include extensive loss, asking annulment of executive manager or director’s board members’ transactions with company, and asking Judgment against endorsers and their sureties for special commercial documents payment depend on adhering a defined period/periods. Besides, only in a special period consignee can setup and demand for non-apparent damages and petition for a general, proportional or limited partnership dissolution which one of its partners has died or incapacitated depends on disagreement with company’s continuance within a fixed period. If all above periods were time lapse we could obey non of them because Guardian Council has abrogated time lapse in civil (including commercial) matters. This experimental research analysis shows time lapse is for a manner right principally exists legally and flows but Legislature setting period prevents its flow whereas in some of above cases right is created exceptionally and within that particular period (time span). Right’s time span in comparison has particular rules.

Bill Amending a Part of the Commerce Act  1969 (BACAI) is ambiguous about the manner of directors board members’ and executive manager’s fiduciary possession of joint stock company’s property. Commerce Act in other companies deems manager’s possession of company’s property as agent’s possession of principal’s property. But, although agent’s possession of principle’s property is fiduciary and fault-based, it is unknown whether in case the company’s property suffers damages, manager (agent) is responsible unless he proves his innocence (diminished fiduciary possession) or he is not responsible unless the principle proves his fault (intensified fiduciary possession). Besides, in case of any doubt, which kind overrules? Further, dividing responsibility manner among various responsible persons such as directors’ board members and executive manager needs some discussion. Dividing fiduciary possession into diminished and intensified is a result derived from amalgamation of stages of truth and established judicial situation, i.e., from amalgamation of  civil evidence with commerce law. There are clear signs for it in Commerce Act. This research shows that the Legislature as in the Commerce Act has deemed agent’s possession of company’s property as diminished fiduciary possession; in the BACAI as well it has not principally changed its mind in respect to directors board members’ and executive manager’s possession into intensive fiduciary possession but annual audition and financial clearance have disrupted possibility of applying the diminished fiduciary possession. In case responsible persons were more than one, responsibility would be divided proportionally and if there was no reason to the contrary, proportions would be equivalent.Obviously, determining manner of board members and executive manager’s possession can respond to a variety of issues about manner of their responsibility. Separation of fiduciary possession into diminished and intensified and setting the diminished fiduciary possession as principle is also helpful in this case, and in the first step, it determines that board members or executive manager are plaintiff or respondent of the lawsuit. Obviously, intensified possession in which responsibility continues to be based on fault should not be confused with guarantors possession in which liability is not based on fault. Although fiduciary possession can be converted into guarantors possession, and moment of this conversion can be determined by resorting to the principle of the lateness of the event. Diminished fiduciary possession, including customer’s possession, mortgagee’s possession and tenant’s possession may also become intensified due to unwanted staying of property at the possession of fiduciary; As we can see in the non-delivery of the cargo from the transport operator, the non-appointment of the successors of the board members with the expiration of their term of office, or in exercising the right of bailment of the transport operator. In fact, just knowing that the responsibility of board members and executive managers is based on fault has not been enough to respond to the relevant issues.The legislator considers fiduciary possession of an attorney (or representative) to be a diminished fiduciary possession, i.e. the attorney is liable for the property he has been entrusted with unless he proves his innocence. Therefore, Commerce Act too considers the manager's possession on the properties of different types of companies, including limited liability, general partnership, limited partnership, joint stock partnership, and proportional liability partnership as diminished fiduciary possession. In the 1968 amendment bill and the Cooperative Sector Act, despite the inconsistencies in the amendment bill, the legislature has not promoted its view on the members of the board of directors and the executive manager’s possession to intensified fiduciary possession but annual audits and account clearances have impaired the possibility of applying diminished fiduciary possession In such a way that after auditing and approving the balance sheet and profit and loss account for each year, for that year possession is considered as intensified fiduciary for the board of directors and executive manager, that is, they are assumed to be clean for that year unless their dishonesty and culpability are proved. This can also be extended to the companies contained in the Commerce Act. In the event of a multiplicity of responsible persons, responsibility will be proportional and in the absence of the opposite reason, proportions would be equal.There is no funding support.

One of the main problems in suing legal entities, including companies, is their confession, denial or oath. At first sight, it seems they cannot take oath, confess, or deny, but a closer look shows the opposite. In the lawsuits for or against the company, the Civil Procedure Code and the Commerce Act consider the executive manager and the liquidator as the claimant, respectively. The legislature does not consider such a position for contractual representatives. In all these cases, the other party in the lawsuit requires confession or an oath of the executive manager, and the company will need to deny or doubt the other party’s claims. The executive manager’s writings in the commercial notebooks are counted as the company’s written confession. Therefore, it seems that the company’s confession, denial, and oath are also imaginable, and it is on merits possible to deem the confession or denial of the executive manager or liquidator of the company as confession or denial of the company and require the executive manager or liquidator to take oath on behalf of the company. They can accept to take the oath, although they are unlikely to be able to refuse to take the oath. In this regard, some reasons are presented, such as a natural bankrupt person; in this case, the executive manager, despite the company’s bankruptcy, has not lost his standing completely and still can accomplish some work on behalf of the bankrupt company. All of these, in addition to companies, will apply to all types of legal entities.
 This descriptive-analytical research will show that the legislator considers contractual representatives the parties’ lawyers while legal representatives are the parties to the case. In this regard, the executive manager is not a contractual but a legal representative. The reason is that he is not determined by his principle (company) but according to the rules laid down in the law.
In analyzing the subject of this article, it is necessary to discuss assuming the impossibility of confession, denial, or oath of a legal person; considering the executive manager and the liquidator as the claimant; differences between the places of legal and contractual representatives; means of confession, denial, or oath of the executive manager or liquidator on behalf of the company; and the possibility of bankrupt businessman’s intervention in commercial lawsuits.
The precedence of assuming the legal status of contractual and legal representatives as the same by most practitioners and analysts has led to misconceptions. But as the hypothesis of this article, the legislator clearly differentiated between the two groups, granted them different rights and powers, and thus made it possible for a legal person to confess, deny, or take an oath.
The research showed that contrary to what is known, legal entities can confess, deny, or take an oath, and each of these cases is done by their legal representative (executive manager) or deputy (liquidator or head of the bankruptcy liquidation department). Since legal persons do not enjoy the capacity to exercise rights and discharge obligations, the legislator somehow principally considers the legal person and his legal representative the same. The legal representative is also considered the claimant, and his position differs from the contractual representative’s (lawyer) position.
Not only the claim of rights but also the recovery of all the company’s rights is with the executive manager. Therefore, in principle, he has all powers granted by the legal person. He can either confess or deny or take oath in the name and for account of the legal person. The company’s components and crew cannot confess, deny, or oath on behalf of the company. The Board of Directors is also not a legal representative (executive) of a legal person.
The executive manager is not a contractual agent but a legal representative. The liquidator is a substitute for the bankrupt. Unlike a contractual representative, a legal representative cannot object as a third party to a decision for or against his principle but may request a retrial. Absent the guardian (executive manager), a legal claimant cannot file a lawsuit or hire a lawyer. If his former guardian has hired a lawyer (a contractual representative) for it, that lawyer will also be dismissed by the deterioration of the guardian’s position.
By law, the legal representative must be presently the principles’ representative to confess, deny, or oath on behalf of him for the events of his current or previous tenure. Given the current executive manager’s dominance over all the old and new information in the company, it seems that he can also confess or oath (independently or supportively) about events before his appointment based on recorded documents of those events. Of course, it appears that he cannot refuse or cancel such an oath and cause the claimant’s dominance over the company’s assets.
The legislator has exceptionally allowed the bankrupt, with the court’s permission,, to intervene outside the incapacity into a dispute currently set by or against his substitute (liquidator) as a third party. Bankrupt legal entities need their legal representative (executive manager) to exercise this right.

Seemingly carriage contract in commerce law is a contract including suspension in initiative. This does not mean that contract between consignor and carrier is a contract suspended in initiative but seemingly this contract contains a pledge in favor and a task in detriment of third person i.e. consignee and conclusion of this pledge and task as a contract depends on his acceptance. This acceptance does not affix that pledge or task on conclusion of contract between consignor and carrier but can affix after sending bill of lading or receipt to him or after cargo arrival in destination with demand from the consignee or with notice to him to refer for receipt of cargo. With availability of suspension’s subject and acceptance of pledge and task, the relationship between carrier and consignee concludes. Suspension in initiative can be seen as well in agreement for decrease or increase of damages from full price of cargo. As at the time of that agreement damages are not yet sustained, its conclusion at the moment of carriage contract’s conclusion faces difficulty. In this connection, it can be said that as cause of damage has been created by the carriage contract, so agreement about it is possible. However, this argument is skeptical whereas seemingly resort to suspension in initiative is a better solution to this problem. The present research analysis besides proving the accuracy of its theories, leads to unveiling of various new instances of precise rulings about suspension in initiative.

With regard to the subject’s show up in Civil Code, Commercial Code and the Act on Manner of Enforcing Pecuniary Convictions, there are different views and ambiguities about the legal status of kinds of bankrupt’s fictitious and with conspiracy transactions. Insight in contents of the related articles of above Acts shows that from the Legislature’s view transactions are not fictitious unless otherwise is proved. Fictitious transactions whether concluded by bankrupt or not are null and void. Non-fictitious transactions are divided into two categories of with conspiracy and without conspiracy. In this connection too transactions are not with conspiracy unless otherwise is proved. Transactions with conspiracy would as well be null and void or revocable whether concluded by the bankrupt himself or not; as well whether the bankrupt has concluded these kinds of transactions before or after interruption of payments. But transactions without conspiracy are principally valid though according to Act on Manner of Enforcing Pecuniary Convictions they may result in punishment of the person transacted for evading debt or harming creditors. These kinds of transactions may exceptionally due to other causes become revocable or null and void. The legislature has ultimately chosen the method selected in the Commercial Code with a little difference to apply in all cases in the Act on Manner of Enforcing Pecuniary Convictions. In general, the Legislator, contrary to the expectations, has not adhered complete coordination between the causes of bankrupt’s transactions nullity and the causes of culpable bankruptcy.

Because suit’s dismissal writ issues in between parties’ arguments closure and appeal judgment’s issuance and before that the court has done its primary proceedings and quashed the primary verdict, this question arises that whether with appeal suit’s dismissal writ issuance the quashed primary verdict revives or remains persistent as quashed? To answer, it seems that after primary verdict’s quash, whether the appellant has been the primary suit’s plaintiff or defendant, relying on the proceedings singleness principle, that would be only plaintiff who can discontinue the suit and with suit’s dismissal writ issuance at the appeal stage the suit becomes res judicata completely. This happens in courts where the file has referred to them after quash as well. But if the appellant was the defendant, he/she could discontinue the appeal suit only before the primary judgment’s quash. What said, in addition to quash of verdict in appeal stage includes writ’s quash in that stage and judgment’s quash in supreme court appeal and objection to ex-parte verdict, however, due to some practical reasons it happens differently in retrial and third person’s objection suits. Although appeal court’s decision for its initial trial can as well be deemed judgment, the suit discontinuance before that decision does not lead to suit dismissal writ. Therefore, issuance of that writ cannot be expected in the supreme court. This happens not only about suit dismissal writ but also as to suit rejection one. In this way, different functions would be explored for discontinuance of a suit.

Certainly, the Commerce Act deems guarantee contract as principal and suretyship as exception. In this respect, although every suretyship is a responsibility but every responsibility is not a suretyship. Suretyship is divided into definite and proportional and principally between debtor and sureties also among sureties suretyship is horizontal. Whether suretyship is vertical or horizontal, surety’s debt would not due with principle debt becoming due with debtor's death or bankruptcy, but, he gains right to compel creditor to take his debt or withdraw from it. The Commerce Act in a courageous endeavor has set before the pledge suretyship and has put that’s regulations as same as the debt suretyship's regulations. The arrangement contract in Commerce Act and the undertaking's guarantee in Civil Act seem as pledge suretyship's clear statutory samples. Despite in normal guarantee, in suretyship debt's or pledge's mortgages would not return with debt’s payment or pledge’s accomplishment. It remains with surety to relying on receive his paid amount or accomplished pledge's equivalent. This is not mortgage's mortgage but mortgage's transfer and in which transfer takes place automatically. So, debtor is required to cooperate for the purpose. In fact, at regulating suretyship, Commerce Act has inserted the pledger’s plurality rules.

Although in enforcement of pecuniary judgments, resort to seizure of property for security or execution is the main method, and the resort to judgment debtor’s detainment cannot free the judgment creditor from it, this method is not perfect because there is an almost hidden rational principle in the civil judgments enforcement act according to which judgment creditor deserves to acquire judgment debt solely from the property seized for security or execution. This principle can be extended to the acquisition of judgment debt from the mortgaged substance. Few exemptions of this principle i.e. possibility of converting the property primarily seized for security or execution to another property’s seizure, possibility of converting the property secondarily seized for security or execution to another property’s seizure, possibility of converting the seizure of salary and privileges for security or execution to another property’s seizure, possibility of converting the property claimed by a third person to another property, and possibility of converting the unsold property to another property cannot always relieve the judgment creditor from restrictions caused by the above-mentioned principle. As a result, that principle in fact means the principle of non-convertibility of property seized for security or execution and is extendable to the mortgaged property and in contrast to what plaintiff or judgment creditor or their legal agents may suppose, hesitant and non-clever seizure of property for security or execution is not so useful and it may eventually cause serious problems on the way of enforcing the judgment.

Civil Act discussing the mortgage brings regulations on characteristics of subject of mortgage, mortgagor’s rights and mortgagee’s rights. But only exceptionally has regulations on the debt mortgaged for. Depending on determining whether mortgaged stock is mortgaged for present or for future debts of directors, this question would be answerable that if somebody re-seized the mortgaged stock and after it director damaged the company, which one would prevail, re-seizing person or mortgagee of that stock? Despite what at first glance under the influence of Civil Act seems, Commerce Act and its Amending By-Law in addition to taking mortgage for existing debt, approve taking mortgage for existing pledge and for non-existing debt which its cause has been formed. So, the company takes mortgaged stocks from directors not for existing debts i.e. for putting its asset under the directors’ custody but for future and possible damages which may occur from their managerial conduct (i.e. non-existing debt which its cause has been formed). So, until the damage has not been sustained and the mortgage is not established, the re-seizure would prevail the mortgage. As a result some allowed kind of re-mortgage forms.

Civil Procedure Act deems securable not profit claim’s object itself but its equivalent. That Act once allows the defendant’s wage (equivalent of his profits) to be secured, but, later it accepts securing from lands and gardens outcome (profit itself). This is ambiguous. Civil Judgments Enforcement Act as well repeating the possibility of seizing losing party’s wages, seizing lands and gardens and non-following of seizing profits of immovable properties from their substance, brings about more complete relevant regulations. In addition, in Commerce Act security from equivalent of dividends of defendant’s stocks or shares or seizing those equivalents as well seizing profits possessed by bankrupt person have been set before. Attached profits are not separable from substance so they are not discussed here. Separable profits can be collectable or in current. Collectable profit is deemed as substance so it by itself can be secured or seized. Legislature’s not taking notice of this matter has led to this duality. As current profit gets moment by moment vanished and substituted, it ruins by security or seizure. Albeit, seemingly despite legislature’s ignorance judgment enforcement department can change in current profit into its equivalent and secure or seize that equivalent.

The general, proportional, and limited partnerships are deemed as revocable and death or incapacity of their shareholders each would hamper their persistence. So presumption of revocability of these partnerships as a contract emerges, but many reasons suppress this presumption. That contract is principally deemed as binding; so the shareholders’ withdrawal or expulsion from the partnership would not be possible. However, possibility of revoking the partnership’s contract as well situation of the partnership contract at the exposure of dissolution with the death or incapacity of the shareholders each brings about various questions and ambiguities on consequences of these happenings particularly on the creditors’ rights. This analytical research shows that despite analyzed special regulations, these partnerships are still deemed as binding. Revocability does not make them non-binding. Besides, death or incapacity of one of the shareholders (general partners at the limited partnerships) although puts them at the exposure of dissolution but does not inevitably lead to their dissolution. However, in some situations, on decision to dissolve the partnership or to keep it persisting, creditors lose the demised shareholder’s responsibility in respect to what the partnership owes them in case of its dissolution and its insolvency for payment of its debts to creditors.

The General Agreement on Trade in Services, as one of the three main agreements attached to the WTO Agreement, contains two categories of general and specific obligations. General obligations are obligations that members are required to comply with when joining the organization. Specific commitments include market access, national behavior, and additional commitments, which are determined and negotiated through national tables appropriate to the terms and level of each memberchr('39')s commitments.

The research method in this paper is descriptive-analytical.
Ethical Considerations: Ethical considerations regarding the writing of texts as well as references to sources were observed.

WTO members are required to align their domestic laws with WTO requirements. In Iranian law, there are cases of conflict with the requirements of GATS specific obligations that need to be resolved in accordance with the rules of the organization.

Articles 81 and 82 of the Constitution, the rules of investment and tenders in Iranian law are in conflict with the specific obligations of the World Trade Organization.

Although bringing in the third party (BTP) has been lying in Civil Procedure Act of Iran for about 100 years, but rarely its points have been noticed. Despite presence of some kind of dependence between main and ancillary litigation at all ancillary litigations, such dependence is much more in three litigations of third party entrance, BTP and counter claim and it can be said that due to said reasons this dependence is in utmost in BTP. In other words, BTP is a follower litigation. This obedience is observed not only in required number of plaint for BTP, but also in court’s jurisdiction, in deadline for presenting petition and plaint, in moving dilatory pleas and lawsuits, in joinder of claims in every instances of trial, in objection to the ex parte judgment, in appeal and even in pleading the Supreme court. In a way that independent hearing of a litigation which is in real BTP in any instance of the trial would be impossible. From these results other results would be derived in possibility of setting before dilatory pleas by the third party defendant of the main defendant about the main litigation, proportional possibility of application for attachment and injunction from him by the main plaintiff and the need for consent of the latter person for withdrawing the BTP’s lawsuit, non-issuance of necessarily only one judgment for the main and the BTP lawsuits, and principally necessity of joinder in all instances of its and any other ancillary litigations trial.

Always there has been this question in the minds of experts that whether the partnership securities (ouräghe moshärekat) have been able to substitute debentures in the market properly? Present legal analysis shows that partnership securities as a substitution for debentures are needed for the market. But despite fundamental differences between stocks and debentures, partnership securities are a compound of stocks and debentures. To say they have both the advantages of stocks and debentures without getting suffered from disadvantages of each of them. In addition, legal questions on management of the subject project of these securities as well responsibility out of these securities for its holder has not been considered by the legislature. Mechanism considered for partnership securities although approved from the Islamic jurisprudential (fiqhi) view contains fault from the legal economy view so such securities practically and in the market (within the private sector) have not been acceptable so have not been accepted or used. As a result, partnership securities could not substitute debentures perfectly.

Legal analysis to causes and commands of resort to court for election of joint stock companies’ temporary inspector or comparative explorative analysis of the legal questions on companies’ temporary inspection had not so far been approached by the specialists perhaps because of its extraordinary scientific complexity. This research shows that there are many differences between the law governing the directors’ board members and the executive manager on one side and the law governing the inspectors on the other side. Besides, there are considerable differences between the laws governing the main and temporary inspectors. These differences show that for the Legislature the inspection is more sensitive than management and considering the appointment of the temporary inspector by the court is a reason as well a consequence of this sensitivity. Seeing a company for a few months does not have a board of directors or an executive manager is comparatively easier tolerable for the Legislature than seeing it without having an inspector or sufficient number of inspectors. As well, decisions and operations of disqualified directors’ board’s members and disqualified executive managers are tolerable for the Legislature, whereas the reports of a disqualified inspector are never acceptable.

A Judge’s reliance on contradictory principles in issuance of a verdict causes the verdict to become a “verdict containing contradiction relying on contradictory principles” and become exposed to new trial. Despite many scientific, practical and analytic difficulties in exploring examples exactly fitting the above-mentioned notion, there are some examples among the articles of law regarding contradictory judgments and principles. Non-hiddenness of the evidence of suit, awareness of the plaintiff of the new trial of the existence of evidence, expiration of new trial period on hidden or non-noticed evidence and solvency are some examples of such principles. These principles usually overlap partially, but they cannot overlap completely. Such a verdict contemplates wrong imposition of burden of proof in lawsuit. Not only Civil Procedure Act but also other acts such as Commercial Code contain such principles. Mere existence of contradictory principles within a verdict cannot change such a verdict into a “verdict containing contradiction relying on contradictory principles”, but some conditions have to be observed within that verdict. Hence, the mentioned verdict is necessarily an example of the verdict containing contradiction and both principles must be used and relied on.

This paper analyzes the ambiguous matters of substituting goodwill i.e. its consistency or inconsistency with the ecclesiastical law, its subsistence, and having or not having the right for transferring the lease to others. Then under the heading of the right for key-money, analyzes the key-money as an amount of money separate from the rent, the meaning of the phrase “the right for demanding the key-money in updated rate”, non-continuation of the lease after the expiry of its period in the key-money of the first kind, possibility of cancelation of the base lease of the key-money, and the manner of extending the lease; and after comparing the goodwill with the key-money relying on the discussions made, it has concluded that the right for the key-money is not a suitable substitution for the goodwill. As a result, the latter which has been proved as not against the ecclesiastical law, must be returned to the legal system.

Present legal analysis shows that despite of lawyers wanted or unwanted overlook, condition in initiative could not be and has not been set aside from the legal relations of the people in the society and the Legislature has adhered this by deeming it principally as valid. From the condition in initiative in this research analysis, the condition in offer, condition in acceptance or condition in both is meant. There are many obvious or hidden usages for condition in initiative in the social relations, particularly in the contractual and trade relations. Possibly many legal actions which presently are being made disputably, with using the condition in initiative can be done more efficiently and indisputably. Applying the condition in initiative provides a more ingenious mechanism for reaching the contracts aims easier, reaching multistage aims and avoiding leaving the probable problems of implementation to the time after conclusion.

Although according to the law, the board of directors determines the scope of the executive director’s (manager’s) power, but executive powers which are not granted to the manager, despite the usual ambiguous perception, are not executable by the board of directors itself. As a result, this paper proves that in the commercial law, there is an almost hidden principle called the principle of mere allocation of company’s executive organ to the manager.
Use of the word “executive” in the title “executive director”, compulsory nature of publicizing only the manager's characteristics in the national gazette, compulsory nature of having a manager and the exceptional nature of having the board of directors in companies, manager’s discretionary power in a company’s executive affairs, required natural personality of the manager and the possibility of standing as manager only for one company, as well as the unlimited nature of the managerial term prove this principle.
In external (company’s relation with persons out of it) and internal affairs manager is the sole executive agent of the company. However, a company can have more than one manager and it is possible for the board of directors to introduce other persons as the company’s special agents, or as persons compatible to make signature on behalf of the company. In addition, a company may partially grant its powers to other persons.
Only the manager’s characteristics should be publicized in the national gazette. This would have different results including that his post gets deemed principally not expired and that the company gets known by him. However, the procedure for introducing a person as a company’s executive agent is a relatively long and complex matter. However, it is not impossible for the manager to be appointed by the general assembly rather than the board of directors. In such a case, the general assembly meeting’s minute rather than that of the board of directors would be publicized.
Having at least one manager is compulsory for every company but having the board of directors is exceptionally compulsory; this is because of the difficulties concerning having board of directors in the companies. However, the Legislature avoids the collective execution of the companies’ affairs as well.
Despite managers’ discretionary power in executive affairs of the company, there are some points about the governance of the board of directors’ views over the manager’s views, manager’s scope of power, the cases in which manager’s restricted power can be relied on against the third parties, and election of the board of directors’ head as the manager.
A legal person cannot become a manager in a joint stock company. In other companies, a manager has been deemed as a “person” so it is not impossible for legal persons to become manager of other companies. However, even if the manager is a legal person, at last the managerial affairs of the company would be accomplished by a natural person. However, although the term for the board of directors’ membership cannot exceed two years, there is no maximum term for being a manager. This is because s/he is elected as an agent not for the board of directors but for the company. In fact, although principally it is the board of directors which appoints the manager, but it grants the company’s rather than its own powers to him/her. In other companies as well no maximum term has been determined for engagement as a manager.
During many decades, no paper had been written about manger which had different reasons. One of the reasons is the extremely scattered situation of related material and the other is the presence of conflict, controversy, and ambiguity among relevant regulations.
As one of its auxiliary results, this study proves that the manager in the companies other than the joint stock and the cooperative is not a director (a member of the board of directors) but an executive director (manager). Hence, in case those companies have more than one manager, those managers would not form a board of directors as it is usual in joint stock and cooperative companies. That would form a board of managers, and decisions making in which would be by unanimous consent rather than majority vote. Besides, as it happens about the joint stock companies’ manger of having negative conditions of eligibility, it seems possible to deem as correct the acts and endeavors of other companies’ managers in case they have been chosen or acted while having the legally negated conditions of eligibility.
In some cases, matters grounding this principle (principle on mere allocation of company’s executive organ to the manager) such as discretionary power’s existence for the manager in the company’s executive matters, and executive matters’ separateness from legislative ones have been proved as well. Under this principle’s light, analyzing the different parts of the important issue of possibility or impossibility of reference to the manager’s power’s restriction against the third parties has become possible and it has become clear that the manager has a place quite independent from the board of directors.