فهرست مطالب حجت مبین

The Principle Pacta Sunt Servanda which results from the autonomy of will and intention of the parties to perform the contract is one of the fundamental principles governing contracts. A contract may be breached intentionally or frustrated by unwanted events like force majeure which causes the obligor to be exempted from performing the contract. These events are studied as excuses for the performing of the contract in different legal systems. But sometimes parties emphasize the performance of the contract so much that no reason, even legal, should permit nonperforming of the contract, as they want the contract to continue to be enforceable in any circumstance; For this purpose, the “Hell or High Water Clause” is included in the contract. In this article, we study the essence, foundations and effects of this clause in common law and the position of Iranian law in relation to it; The mentioned clause is enforceable in the common law, except in exceptional cases, and it is used and cited especially in commercial contracts. It seems that this clause is enforceable in Iranian law, provided that the contracting party has the knowledge and awareness and is capable of managing risk; so, this clause does not conflict with Iran's jurisprudence and legal foundations.

Articles 454 and 455 of the Civil Code are ambiguous in terms of the examples of the "right of rescission", the examples of "the implied condition of prohibition of the customer in the assignment" and the meaning of the word "void"; however, the supreme court decision as a unified judicial precedent No. 810 dated 24/06/2021is also vague and outside the scope of the lawsuits. A court has described the option of violation of the payment of installments and the delivery of the goods upon rescission as an implicit prohibition of the customer's assignment, and has ruled on the invalidity of the possessions and eviction. But in similar lawsuits, another court, from the terms of the same contract, did not describe such a concept, and with a different interpretation of the law, ruled against the seller. The supreme court emphasized the intent of the contracting parties in the case of the right to rescind the contract and return of goods sold, by commenting on an implicit matter, and did not comment on the legal status of the possession of the seller, and believes that the owner's right of priority does not invalidate the condition and the right of rescission against the return of the goods. While, according to the opinion of the majority of late and contemporary jurisprudents, deduced from Articles 454 and 455 of the Civil Code, the customer's right of assignment in the contractual right of rescission is dependent null. Thus, since the implicit matter of the return of goods sold and the request for eviction is based on the request for the cancellation of the assignment, the decision of the court is logically voidable.

One of the most substantial rights of shareholders that has been specified and guaranteed by the legislator in the commercial laws and legal systems of many countries, including Iran; Shareholders have the right to be informed of the status of the company. According to Article 139 of the amendment bill of a part of the Commercial Code approved in 1968, the information rights of shareholders have been explicitly accepted; However, there is no specific legal regulation regarding the extension of this right to some types of corporate stakeholders. Although from a theoretical point of view, some ethical principles governing the theory of stakeholders, such as the principle of transparency and social responsibility of companies, justify the access of some stakeholders to company information, however in practical terms, the conflict between the rights and interests of shareholders and beneficiaries in the form of obstacles such as the rule of the competitive spirit over the company makes access to the company's information difficult for the beneficiaries. Therefore, this article tries to describe and analyze, in a descriptive and analytical way, the concept of the beneficiary, the basics of the requirement for beneficiaries to access information, and the obstacles and challenges ahead in the implementation of this right.

Nowadays, cyber games are a profitable business with wide economic dimensions, including the property rights of gamers, i.e., “Accounts” and “Points”. Since the producers of cyber games are in a superior position to the gamers, by including terms in terms of Service, they usually limit their responsibility for protecting users’ accounts and points, providing support for the games, and reserving the right to terminate the game. For these reasons, the property rights of gamers are always in a precarious position. In Iranian law, due to the absence of specific laws, we can use the rule of “No-Loss” to protect users’ rights in two ways. On the one hand, according to the rule of “abuse of rights”, the producers have no right to damage the property rights of gamers to cause harm or make unconventional decisions in exercising the right. On the other hand, it is possible to deduce from the rule of "No-Loss" the compensation for the damage caused to the property rights of gamers, which cannot be compensated based on other rules of civil liability.

According to the governing principles of medical law, the doctor's intervention in the patient's treatment requires the informed consent of the patient. This consent is achieved when the patient has expressed her/his consent by having sufficient information about the treatment process and its risks. In this study, the question related to the issue that what risks the doctor should inform the patient is answered by a descriptive-analytical method and a comparative approach in American and French law. Despite the different approaches, the two main criteria of "importance of risk" and "probability of risk" are the most fundamental influencing factors in determining the scope of the doctor's commitment in informing about the risks of treatment. In French law, based on the types of risk, "serious" and "common" risks are recognized as the subject of the doctor's obligation to inform, but in American law, based on the approach founded on the patient's perspective and with objective criterion, the doctor is obliged to inform about the risks that are typically important and basic from the patient's point of view, according to the "severity of the risk" and the "percentage of its occurrence". The new approach of English law is also an integrated approach based on "active interaction between doctor and patient" which, due to attention to the specific characteristics and conditions of the patient under treatment, brings maximum efficiency to realize informed consent. The same approach is also suggested in Iran law, which means that before treatment, the doctor, by examining the patient's condition, mood and views, in an active interaction, recognize important risks from the patient's point of view, and in cases where access to the patient's point of view, it was not possible to use the criterion of the reasonable patient.

Civil responsibility has always undergone fundamental changes due to the changes that happen in human life. Economic attitudes to rights and economic analysis of rights are among the topics that have influenced civil responsibility. Therefore, in this research, the criterion based on economic efficiency has been investigated in the verification of the conventional person.

In terms of purpose, this research is practical and in terms of information gathering, it was done in a documentary way and through the study of valid laws and sources, and the obtained information was analyzed in a descriptive-analytical way.

The economic concept of the conventional person examines two realistic and normative approaches in order to achieve economic efficiency, which the economic criterion of the conventional person is based on the measurement of benefits and costs And in this way, she will be able to create the necessary motivation in the perpetrators of damage and potential victims to take appropriate precautionary measures in order to prevent harm to themselves and others. In addition, the chaotic economic consequences have been prevented and thus an effective step has been taken in reducing the amount of costs and realizing economic efficiency. In fact, the economic analysis of the conventional person, while it resolves many ambiguities of the abstract and general concept of the conventional person, it can be a desirable and efficient criterion if it is not the only basis and goal of the conventional person and is desirable and a goal along with other goals and foundations of the conventional person. Thus, in the realist approach, because economic analysis is the basis and in line with other principles and goals of the conventional person, such as ethics, justice, and fairness, it is considered a desirable and acceptable criterion, also in the normative approach, because the economic criterion is the only basis of the conventional person. It is necessary to doubt its correctness and justification.

The purpose of this research is to on what basis the other party or a third party may be required to provide evidence in favor of another. Concerns about discovering the truth and the need to observe good faith in proceedings require that litigants and even third parties be required to provide evidence in favor of another.   This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles. In order to be successful in litigation, it is necessary to identify and prove the relevant issues; That's why the ways to access evidence are so important. The mechanism of discovery and disclosure may be effective in proving the subject matter;Ethical Considerations: In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed. The research results show that either party to the dispute may request the disclosure of documents and any other evidences related to the dispute from the other party or third parties, while in litigation it is the responsibility of the litigants to propose relevant facts and the claimant is responsible for proving these matters

Nowadays, the use of electronic proceedings has been developed in various legal systems. In our legal system, the Judiciary now accepts and registers electronic petitions through the Electronic Judicial Service Offices. Most of the regulations governnig electronic filing of lawsuits are regulated by directive and bylaws and no specific provisions in this regard are found in Civil Procedure Code and other related regulations on this subject. So, in this article we will try to explain the Legal nature of electronic petition. In addition, various kinds of error or mistake in registration of contents of electronic petition and possible reliefs will be analysed. The findings of research show that electronic petition is an unofficial secure electronic document and withdrawal or modification of the error contents, although essentially possible, shall be subject to the provisions of the Civil Procedure Code accordiong to the case. This means that, as far as possible, the nature of corrective action or approach should be adapted to the well-known titles and institutions in civil procedure, such as the return of a petition or litigation, the increase or decrease or change of claim, and the completion or explanation of the petition, while observing the rules governing each of them. The results of this research may improve the quality, the speed and the accuracy of proceedings.

The growth of urbanization and immethodical structure and high density and living space shortages can cause damages for neighbors. In all legal systems, under certain circumstances a victim can sue a claim for damages to be compensated. This paper with analytic-descriptive method is to find an answer to this problem what the base and provisions of civil liability originated from neighborhood damages are in three legal systems: Iranian, Egyptian and English. In the Iranian legal system the only legal article related to adjacent lands is Article 132 of the civil code. But in Egyptian law system some articles have been issued for this important thing and also English precedent in this case encompasses different opinions. The result shows that the base of this liability in the Iranian law system is opposability and in the Egyptian law is fault. English court judgments in this ground incline to strict liability. In all examined legal systems for the realization of liability defendant’s acts should be unreasonable, frequent and ongoing and in adjacency of the complainant although it is seen varieties about how to enforce these conditions.

According to the principle of Freedom of contract the parties to the contract can include their preferred condition in the contract. In this way the condition of the best effort to fulfill the obligations is one of the conditions that can be mentioned in the contract, according to which, the obligor will do his best to fulfill the obligation. Such a condition causes the obligor not to think only of relieving himself. Despite the frequent use of such a condition in US contracts, there is no consensus on its validity. In this legal system, Some lawyers do not accept the mentioned condition due to its generality and ambiguity and consider it invalid, and on the other hand, they consider it correct. Recently, in international documents such as Unidroit Principles of International Commercial Contracts and Principle of European Law Service Contract  the condition of the best effort has been recognized and declared valid. In Iranian law, this condition is explicitly accepted in some laws, such as insurance laws and medical law. This article, using a descriptive-analytical method, after explaining the concept of the best effort condition, examines the position of this condition in the legal systems of Iran and the United States, as well as some international legal documents.

In Iran law, civil liability and compensation for damages caused by psychological injuries have received less attention due to their intangibility. But, in English law, damages resulting from psychological injuries to primary and secondary victims are deemed to be claimable under certain conditions. In this article, in an analytical method and in comparison, with English law, we seek to find the answer to the question of what criteria for damages caused by mental injuries can be claimed. In English law with stress on an objective criterion, on primary victims, places more emphasis on "the existence of a rational relationship between psychological damage and the risk created" and in some cases "the predictability of the risk" and the existence of a "reasonable fear in the claimant" is also considered a condition. Criteria for "predictability", "intimacy", "proximity" and "suddenness" have also been suggested for secondary victims. In Iran jurisprudence and law, the main criterion for determining compensable damage is the mixed criterion means "the ability to predict the loss according to the specific situation of the injured party", which also emphasizes the "seriousness and continuity of the loss" and "the existence of a strong emotional relationship".

Although the human personality and dignity are respected in all legal systems and under certain conditions, a criminal liability has been determined for damaging it, civil liability caused by damage to personality has been payed less attention especially in Iranian Law. On this basis, the main issue in this article is studying the institution of civil liability, its conditions and criteria and methods of compensation in Iran jurisprudence and law and its comparison with the English Law. The research method is a descriptive-analytic and comparative one. Civil liability caused by damage to personality is studied under the general heading of "desecration" in Imamiyah jurisprudence and Iran law, and under the heading of "defamation" in English law. The criteria for defamation in English law is "lowering the reputation from a right-thinking member view of society" and the criteria for desecration in Iran law and Imamiyah jurisprudence is "damage to the personality". The conditions of liability are different in these systems based on these two criteria. In English law, unlike law of Iran, compensation for defamation is usually financial, the amount of which is determined by the court.

One of the issues affecting the realization of economic resilience in Iranian system is the violation of the competition between merchants by dumping. Dumping means selling a product in a foreign market at a lower price than its final cost or the normal price or the cost/price of a similar product in the supplier country, with the aim of gaining an advantage in competing with other suppliers of the same product. Dumping is an instrument for violation of market competitiveness and undermining national production and is therefore considered as an important obstacle against the realization of economic resilience. Thus, for anti-dumping practices, the solutions based on legal and Islamic jurisprudential should be presented to support the economic system and national production and realization of the economic resilience. Therefore, in Iranian law, solutions such as counter-vailing duty, quotas, anti-circumvention and etc. have been proposed as ways of maintaining the health of the economy and providing the basis for the abandonment of dumping activities. In Shia Islamic jurisprudence, sanctions such as compensation and civil liability based on rule "La-Zarar", punishment of the disruptors in the health of the economic system and refund of the profits from dumping activities have been considered as ways of preventing dumping, upgrading the health of the economic system and guaranteeing the resilience of the economy.

The parties can stipulate the “consideration clause” in the most gratuitous contract. Lawyers believe, with the stipulation of this clause, the gratuitous contracts don’t become a consideration contract, but this clause is effective on the nature and consequences of the contract. In this article, we have studied the effects of the consideration clause in the donation, as a most important of gratuitous contracts. The review of the specific provisions governing the donation with consideration shows that a certain basis that would justify these provisions, is not expressed in the legal and Feq books. The provisions governing donation with consideration, especially the irrevocability of this contract, can be explained and justify on the basis of the “Mutuality of obligations” theory. According to this theory, the stipulation of the consideration clause, in some forms of it, causing the mutuality of obligations in a donation and resulting donation with consideration to be irrevocable.

In this article we will study effects of the clause for eliminate or reduce liability in relations between two parties, and also with third parties. This type of clause reduces or eliminates contractual liability of the agent of damage, except in cases of violation of public order that this clause will be considered invalid. These clauses are effective in the tortious liability, provided that the clause is expressly encompassed the fault and does not violate a jus cogens; this theory has been accepted also in the English Law. In relation to the third parties, the agent of damage who is the successor in the contract, could reliance on the exclusion clause against the aggrieved party, based on the theory of “Third-party beneficiary” or “subrogation”. The exclusion clause should be reliable on against third parties who can't prove the fault of the agent of damage, except by reference to the contract.

Human cloning (therapeutic cloning, reproductive cloning) is one of those issues extensively investigated by researchers and being exposed to conflict of ideas. Jurists, too, have different ideas about this issue. Studying the views of jurists shows that saying absolute permission for reproductive cloning is more compatible with Imamiyeh Jurisprudence; the reason why may be relied on the absolute permission and the principle of Ibaha (permissible). However, it is worth considering that reproductive cloning, regarding the way of taking the nucleus of generic cell, is of different forms and, religiously forbidden. What agreed with in the field lies in the absolute permission for cloning during conjugal life. Besides, investigating international documents show that considering the objectives of legislation regarding preserving the primary rights of human beings, cloning is permitted, save those rare cases which it contradicts human rights. The current research used a descriptive-analytical approach to probe the issue and concluded that the permission for absolute reproductive cloning is the dominant view among jurists. Also the same is the case in international documents unless it contradicts human rights.

Criminal Procedure Code adopted in 2014 has affected the scope of moral damages and loss of profit from some perspectives. On the one hand, the extent of civil liability for any moral damages to injured party has increased. According to article 14 of the Code, the harm in both forms of loss of reputation and mental distress leads to the civil liability of injurer. On the other hand, the scope of recoverable moral damages and loss of profits, that is, the scope of civil liability of the persons has been sharply reduced. In cases where blood money is paid and the Islamic punishment is imposed, these two types of damage cannot be compensated. In this regard, the legislator has stopped up even further by stating that this type of damage is compensable when the loss of profit compensation can be equal to the destruction. Finally, based on article 14 (1) Criminal Procedure Code, the scope of remedy for compensating moral damages has expanded. In other words, moral damages can be compensated through pecuniary and non-pecuniary way.

In our legal system, unauthorized transaction (the sale by non-owner), is void by the rejection of the owner and the owner has the right to refund sale. If the buyer is ignorant of the non-authorized of seller, no doubt, compensate the damages are accepted, and the civil law has allowed the claim for damages, by emphasizing the term "compensation". It seems that the legal rules such as Ghorur and the principle of full compensation based on placing a damaged person in the implementation of the contract, can justify the compensation to the buyer. So, the buyer should claim for compensate the price of sales from an unauthorized seller. In English law, the legislator has declared the sale by non-owner is valid in some cases, and has supported from the buyer with good faith, and prevented his loss. A point of view that can be taken into consideration, for compensating the buyer in Iranian law.

Background and Objectives After the transmission of AIDS and hepatitis to some hemophilic patient’s due to infected blood transfusions, the issue of civil liability of the state caused by the supply of blood contaminated in our legal system was seriously raised. The lawyers have mentioned several bases for the civil liability of the state (blood transfusion organization), including the basis of fault, strict liability (breach of safety obligation), equipment defect, and the basis for the not-harm. The purpose of this article is to describe the opposability as the basis for the state's liability in this field.
Materials and Methods The research method in this paper is an analytical and descriptive method based on the analysis of legal provisions and the views of lawyers and jurists.
Results The findings of this paper indicate that in the Shiiet jurisprudence, the Etlaf, Tasbib and Ghoror rules have been used to prove the state's responsibility for the supply of contaminated blood, which the Tasbib rule is more in harmony with this issue. In Iranian law, many lawyers have also tried to analyze this responsibility on the basis of strict liability.
Conclusions The theory of opposability as one of the theories expressed in the basis of civil responsibility, which relies on Shiite jurisprudence, can well justify the responsibility of the state for supply of contaminated blood, without the need to prove the fault or to be liable to the strict liability that is not acceptable in our legal system.

The liability arising from property is always one of the most significant issues in the sphere of civil responsibility. Due to the importance of immovable property, as well as the extent of the damage caused by this property, the liability of owners and occupiers has always been considered to the visitors in estates. In this article, it is attempted to study in detail the responsibility of the occupier or the owner to the permitted and non-permitted visitors under English law and the Islamic legal system. In summary, it can be said that the owner or the occupier has a "common duty of care" to the permitted visitor and shall be held liable in the case of breach of this duty. In spite of the fact that principally there were no responsibility for the owner or the occupier to non-permitted visitors neither the English Law nor in Islamic and Iranian legal system in the past, nowadays, through expansion of the conception of duty to care or on the basis of customary invoking, it is possible to recognize the responsibility for the owner or the occupier.

Market manipulation is one of the actions in the laws and regulations governing securities markets, the have criminal or disciplinary sanctions and in the case of the loss also creates civil liability. This paper is an attempt to analyze the three elements of civil liability in respect of liability arising from market manipulation and also the manner of evaluation of the damage has been investigated in this paper. In summary, we can say that any person by publishing untrue information, or transactions or other methods causes false prices for the securities, and thereby damage the traders’ benefits, will be liable to compensate the damages. The damage is equal to the difference between the current price of the stock and the stock price in assuming no fault.

The “commercial paper discount” is one of the common ways of financing in the world banking. Because some objections and religious doubts, the using of these method in Islamic banking is faced with challenges. So, definition of the nature of the commercial paper discount is important for determine the effects, terms and conditions governing its.
In this study, different religious jurisprudence opinions and legal doctrines about nature of the commercial papers discount has been criticized and analyzed, comprehensive approach, this article provide a comprehensive analysis of the nature of commercial paper discount in the banking system, according to the commercial description of these documents, and with regard to banking regulations and guidelines, and study its conditions and terms.
ultimately, we can conclude that the commercial paper discount, in Islamic Banking, is analyzed in the form of a “Debt Purchase” agreement. This analysis is consistent with the true nature of the discount in the banking system, as well as the nature of commercial paper and its regulation. In the other hand, it is also consistent with famous Shiite jurists opinions.

Jurisprudence, in its strict sense which is binding, is regarded as one of the important sources of law. This article seeks by relying on some judgments issued by general board of Administrative Justice Court concerning the Social Security Organization summarily investigate some deficiencies in performances of the Social Security Organization and Administrative Justice Court. In short, the enactment by the organization of some mandatory rules or extending the scope of statutes through issuing regulations may be considered as the most important critique in respect of the Social Security Organization performance. The most important critiques of Administrative Justice Court may be summarized as follows: literal interpretation of law, non attention to legal principles in particular those governing over social security, non attention to legal regulations and non attention to the legal authority of Social Security Organization.

The basis of civil liability is so important that it would not be exaggerating if one says, the basis of civil liability is the most important issue in private law. From the beginning of the formation of civil liability law, the lawyers were seeking a basis to justify it and the various theories in this field have been presented. In this article, "opposability", as a new theory on the basis of civil liability is provided. According to this theory, the basis of civil liability, is the opposability of damage to the wrongdoer. The criterion of opposability is the relation of causality customary. This theory also has a basis in religious jurisprudence (FEQ) and can justify all responsibility rules in religious jurisprudence. Some of Islamic jurists have mentioned this issue in their works. In spite of the first section of the Civil Liability Act and under the doctrine of some lawyers who have believed to the theory of fault, in Iranian law, the theory of opposability is more suitable than other theories. In western legal systems such as French law and Common law, liability is principally based on the theory of fault, but in some cases, liability without fault is accepted. The doctrines of these systems have presented and accepted new theories of liability and it seems that lawyers welcome the theory of opposability.

International business disputes are usually resolved through the use of international commercial arbitration. However, beside the formation of the ICA as a transnational reference to resolve the business disputes, a particular legal system, distinctive from national and international legal systems, was gradually set up and called "Lex Mercatoria", with the main distinction of independence from the state or government. Today, arbitral awards upon Lex Mercatoria are widely recognized and enforced in a great number of legal systems and international documents.In Iran, although by approving the "ICA Act" and joining the New York convention, some restrictions on the enforcement of arbitral awards which are based on Lex Mercatoria were removed, some other measures including the amendment of the regulations for explicitly accept this rules, limiting the number of revocation on this awards, and improving the legal procedures to limit the concept of public order are required.