فهرست مطالب محمدعلی خورسندیان

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.

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.

This article compares the principles: neighbor in English law, Good Samaritan in America and Ihsan (benevolence) in Islamic law and also see fraternity in French law. The focus of this article is on the scope and application of these rules especially on the compensation of benefactor. This study shows that the Islamic principle has a wider scope and application and is not limited to the state of necessity, but the criteria for describing a person as a benefactor in the judgments of common law courts are practical and useful. Iranian law could consider these characteristics as the criteria of the reasonableness of the behavior. Indicators of good faith, freeness, absence of contractual relationship, absence of gross negligence should be taken in consideration in all charitable activities.

Economic analysis of law is a theory that evaluates and corrects legal regulations by using economic tools, considering efficiency as it’s main goal. Reviewing some of the critiques, raises doubts about the possibility of utilization of it’s whole achievements in Islam. Despite some efforts to prove the theory on the basis of pure rational propositions and jurisprudence rule of expediency, those reasons cannot prove the theory totally. The important question that hasn’t yet been answered, is that can any foundation be found in Islamic jurisprudence that proves it totally? This article has been written on the basis of this necessity, proving the impossibility of concluding the totality of the theory from Islamic jurisprudence. It also presents, for the first time, a new attitude in light of the rule of system disorder negation. Although, it seems difficult to admit the possibility of correcting Islamic verdicts in order to gain private utility as a general rule, but if the inefficiency of verdicts or lack of them creates disturbance in economic subsystem’s interests in a big scale, lifting inefficient verdicts or issuing efficient ones will be allowed but necessary, because governmental verdicts, based on economic system disorder negation, are prior to primitive and secondary verdicts. Economic analyzing of Islamic rulings in order to preserve general interests is permissible just in cases of contradiction with governmental economic expediencies, it is also reliable as long as expediency necessitates and it doesn’t appose stronger expediencies. so it has a more restricted domain compared to the theory.

The precaution principle is one of the significant legal principles which has been debated by lawyers in recent decades and has been used in the law of many countries such as France, Belgium, etc. This principle seeks to assure that the necessity of preventing danger is not limited to inevitable dangers associated with definite damages, but when the society is expose to serious dangers the casual relationship between which and the damage has not been definitely proven scientifically and technically, the necessary measures are taken to prevent the damages as well. Given the function of the precaution principle, it is possible that the efficacy of this principle is confused with some other legal institutions and rules in the first instance. Employing a descriptive-analytic method and after introducing the mentioned principle and addressing its constituent elements namely: 1) confronting the suspected risk; and 2) fear of causing a heavy or irreparable damage, the authors in this paper have reached this conclusion that this principle is distinguished from the compensation principle and provisional measure in law of Iran as well as the necessity to preclude the probable damage and Assimilative Capacity Model. However, its function can be justified by the rule of precaution in life, honor and serious properties in Islamic law. Furthermore, we can invoke the ta’zir or the necessity of maintain the System for legislating crimes and the foundation of fault for proving the damage.

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.

One of the challenges surrounding the operation of private legal entities, such as multinationals or transnational corporations, is the breach of their obligations and environmental obligations that sometimes these are cause of hurt and irreparable damages. This has been one of the concerns of developing countries as capitalist countries. Consistent environmental violations by these entities raise the question of whether these entities have in principle complied with the legal requirements for adherence and promotion of environmental standards. International environmental law appears to be a requirement, though in the form of soft law, for these individuals. The standards and norms that are hoped to be enforced and institutionalized in international law can at least justify the harmful effects of private legal entities on the environmental impacts. This article deals with the requirements and obligations of non-governmental legal entities, relying on substantive legal principles that have generally entered international environmental law by peaceful international relations and through international judicial practice.

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.

breach of contracts and damages which violate the violation is one of the most important issues in the implementation of contracts. One of the cases is the violation of a breach that violates the first contract on the side of the payment of the damages and gives the second contract a type of opportunism or opportunism. the main issue of this paper is investigating the nature and principles of " restitution of the interests caused by disgorgment in the rights of the united states and investigating its possible bases in iranian law and shiite jurisprudence as well as its effect on the commitment to contracts and to prevent effective contract violations. The article shows how the American justice policy is intended to prevent opportunism with the aim of preventing breach of obligations, which is alleged to be in compliance with the other three methods of compensation for damages in markets with stable fluctuations and economies that have underlying inflation. basics explain this method ethics, efficiency, corrective justice, and unjust theory. as stated in iranian law and imami jurisprudence, it is questionable to rely on the theory of having an unfair ownership, but it can be confirmed by citing the rule of rejection of system disorders in certain conditions.

 Community pharmacy, as a place to supply medicine, plays an important role in the health system, so it is important to pay attention to the legal and contractual system of insurance and pharmacy. If this system fails, it could cause problems in the pharmaceutical supply chain, which can affect the entire chain, even pharmaceutical factories.  The contract between basic insurances and community pharmacies in Iran is determined by the Supreme Council of Health Insurance and is equally enforced among insurance companies. This study intends to help policymakers to establish an efficient legal system in this area through the legal review of this contract.

 This descriptive-analytical study with legal inferences deals with the pathology of the various components of this contract. In this study and legal characteristics, including the type of contract, the persons involved in the contract, the subject and duration, obligations, terms of the contract, dissolution, violations, and dispute resolution mechanism of this contract are examined.

 The contract is a non-specific, correlative, contingent, irrevocable, and supplemental contract that deals with the delivery of pharmaceutical services in a pharmacy and imposes various obligations on the parties.
Ethical considerations: In the present study, adherence to the scientific method, ethical principles, fidelity and intellectual property have been observed.

Due to the problems in this contract, the lack of unity of procedure and structural problems in the institutions involved in the implementation of this contract, it is necessary to review and amend this contract to improve this legal system.

In Islamic and Iranian tradition, virginity is desirable and equal to chastity, merit and decency, so most men consider this chastity as a necessity to start a family. Although lack of virginity is not one of indisputable defects in wives in Shari‘a, but the question of this study is what legal sanction the lack of virginity ensues? Jurists have different views on the lack of this attribute; some consider the right to terminate marriage and others consider it as a right to reduction in dowry, also some believe in detailed specification (tafṣīl). Most lawyers suppose that it would be subject to article 1128 of Iranian Civil Code and one of the reasons for termination of marriage.  Most legal writers have not discussed about the status of dowry if the contract is not terminated but Islamic jurisprudence and tradition show that If the right of termination does not exist or is not used, the reduction of the dowry by the ratio of the difference between the dowry of the virgin women and the dowry of the non-virgin is the effect of the lack of virginity. It seems that necessity of unification in judicial procedure in Iranian family law requires adding a clause to the mentioned article regarding the amount of dowry if the marriage is not terminated.

For decades, a kind of innovation has been applied and growing, referred to as open innovation. Open innovation is a concept in contrast to closed innovation, which refers to the use of outside resources to accelerate innovation, reduce risks and increase efficiency. In this type of innovation where multiple actors exchange ideas, knowledge and technology with heterogeneous interests, one of the most controversial issues is the role and place of intellectual property. The key question is whether intellectual property principles encourage open innovation or hinder it? And if intellectual property play an effective role in this process, then how will it be able to play its role? In this paper, it is shown by a descriptive-analytical approach that despite different and opposing theories and arguments, a strong intellectual property system can facilitate open innovation. However, due to the shortcomings or legal gaps in open innovation’s intellectual property, it is necessary to use alternative methods that amongst available approaches, defense invention patent model can provide more assurance for open innovation communities.

Due to the principle of relativity in contracts, the effects of contracts to third parties are exceptional. However, this does not preclude the ability to cite the contract as a legal fact with third parties. However, there are some situations in which the contract between the two parties may cause losses to a third party. There are some examples of these transactions in the Imamiyyah jurisprudence, but there is disagreement about their validity. From a legal point of view, some have considered creating a requirement for a third party to be legally binding with a third party accepting it, and some have considered it to be a prudential obligation subject to third party approval or rejection. Given the importance and role of transactions in the lives of individuals in the community and the lack of precise determination of the rules and effects of transactions, the examination of the status and effects of these transactions will have positive effects. In this article, considering the legal and jurisprudence review and Article 21 of the Law on the Implementation of the Financial Sentences Act of 2015 on transactions for the purpose escaping debts, whether the consignee is aware of the transaction or not, the contract will be held valid. However, in cases where consignee is aware of the purposes of the transaction, a civil fine will be added to the criminal penalty.

In recent years, the European Union based on the law of its members has drafted two groups of articles about contract of services. These two instruments are principles of European law on service contracts and CFR. With regard to the similarity of the systems of contract law in Iran and Europe, the subject of this research is a comparative review of the obligations of parties in service contracts in European and Iranian Laws. This study evaluates the achievements of the European law based on the Islamic and Iranian laws and States regulations of which could be accepted in Iranian law. It has been concluded that, similar to European law, we could accept obligations such as: conformity, obligation of skill and care, duty to inform and notice, payment (even if it is not specified in the contract) and the obligation to cooperate.

Although there are many researches about offer and acceptance, the question of this study is investigating the formation of contracts in a comparative perspective with modern private law. Being conducted through a comparative method, the present research reinforces the possibility that the concepts of offer and acceptance have found a way to law of west from Islamic law. Accordingly, we witness numerous similarities between these two legal systems in this regard. The modern private law is similar to our legal system regarding the elements of the offer, its effects and the cusses of its termination such as the rejection of the addressee, revocation and the passage of the deadline. However, there are some differences in certain cases including the quality of determining the consideration of the offer, approval of modified acceptance or mutual acceptance in new instruments. In addition, contrary to Iranian law, the new instruments have not refered to some causes of termination of offer such as death and incapacity, loss of subject, and repetition of the offer. Furthermore, it is demonstrated that the advantage of western law is to breaking the examples and determining the similar cases and it is stated that which rational methods of modern law could be used in revising Iranian laws.

The main purpose of this research is determining the nature of the relationship between driver and vehicle operator. In this article, we want to answer some questions such as: What is the nature of the relationship between driver and operator at the different types of parking lots? Whether the exclusion clause in parking's bill is valid or not? And etc.
Based on the type of parking, the nature of this legal relation is different in Iran and the American law. Some jurists believe that exclusion clause is valid and some of them believe it is invalid.

This article studies the validity of providing for the lessee’s guarantee as to the substance of lease and proves that such a provision is not contrary to the requirements of lease; since unlike deposit, the nature of this contract is not entrustment (istīmān). The inconsistency of this provision with the Holy Qur’an and tradition is worth studying both from the viewpoint of its inconsistency with specific proofs of lease as well as lack of its causality for guarantee. The absoluteness of the lessee not being guarantor includes the case of provision and non-provision of such a condition in the contract. In case of doubt, the application of istiṣḥāb principle (presumption of continuity) results in nonexistence of guarantee. Also, one of the rules of lease is the requirement of making the substance of lease available for the lessee to exploit the profits and enjoy them and the requirement of lessee’s dominance as to the substance is proved from the Imamiyya jurisprudence viewpoint. Therefore, the condition may not deprive the owner from a proprietary right derived from contract which is based on Sharia. Such a proprietary right is considered to be an order i.e. a Sharia enactment against which the parties may not agree. Therefore, the provision of lessee’s guarantee as to the substance of lease is contrary to the Qur’an and tradition. Also, in interpreting article 493 of the Iranian Civil Code, in which merely excessive use or negligence are causes of guarantee and the guarantee provision has not been dealt with, one may use this viewpoint justifiably and treat such a condition as void. The method of this article is descriptive-analytic of ijtihādī (discretionary) type.

Condition of mu’āmira (counseling) is a kind of condition of option; that is, a condition is set forth that within a certain period of time one may consult a third party and in case he proposes cancellation, the person in whose favor a condition is made can cancel the contract. The civil law has established provision of option for the third party but is silent about counseling. With an analytical method,
this research is seeking the documentation of this kind of option and clarifying its nature and effects. The study indicates that this condition within the contract is of “result precondition” type and the mere stipulating condition would grant the right to cancel the contract to the person in whose favor a condition is made; but applying this condition is subject to consultation with the third party. This condition conveys some kind of strengthening and follows the general rules of condition. Setting time period for it is also necessary. The consultant is to be qualified but his presence and acceptance is not a sine qua non. The trusted consultant is obliged to observe exigency and deserve wage and this condition is transferable.

In Iran's law, it undertakes to refrain from implementing the same obligation (even if it wishes to terminate) firstly, it must request the obligation of the obligated party, and it is only compulsory that it can terminate the contract. While the new legal framework for private law, such as the European Principles on the Law of the Treaties and the Principles of the International Commercial Code, and the Common Frame of Reference, have placed the obligation between the obligation to specific performance and the right to terminate and obtain damages. Contrary to Iranian law, in these documents, the obligation is committed to the specific performance with many exceptions, which is most affected by the theory of respect for personal freedoms. This suggests that with regard to economic developments, the other provisions of the principle of the necessity of contracts are not the fulfillment of the same performance in any circumstances, but the performance of the reasonable and standard expectations of the contract is considered to be the performance of the covenant. On the other hand, while in Iran's law, fines and oversights are owed as tools for putting pressure on him and preventing his misuse, the documents referred to Gibbs to performance is an act contrary to human freedom and has not accepted.

Human rights protect the dignity and liberty of every human being, therefore governments should direct their education and training towards promoting the enjoyment of human rights. This study aimed to develop a human rights curriculum for higher education in the Islamic Republic of Iran.

Based on the qualitative design and case study methodology, to determine the necessary elements for developing a human rights curriculum, the opinion of professors and experts of law and social sciences in Shahid Beheshti, Isfahan, Shiraz, and Kerman universities was obtained by using an open-ended and semi-structured questionnaire with purposeful sampling and theoretical saturation technique. Then, the obtained data were categorized and organized into basic, organizing, and global themes by using N-Vivo software which created a thematic network. The triangulation method was used to validate the qualitative data.

A human rights curriculum (global theme) has some dimensions such as content, logic, goals, methods, and learning environment as organizing themes, and each of these has different levels and various basic themes that should be considered in developing a human rights curriculum.

Human rights are realized through conscious and continuous demands for the rights of all individuals and learning, understanding, protecting and respecting these rights are vital for their realization. Therefore, educating about human rights plays a major role in the persistent protection of human rights and fighting against their violation and it is an important investment in achieving a society in which all people are respected and valued.

In the single article of medical abortion, legislated in 1384, definition of “hardship” needs to be more investigated. Lack of any accurate and comprehensive definition of mother’s hardship in mentioned single article would lead to different impression about the subject and could lead to excessive enforcement. In addition, lack of appropriate legislations in the field of abortion caused by rape is notable. As regards to the fact that the goal of mentioned single article is to reduce the rate of defective/mentally disabled children and reducing the rate of fatalities caused by non-sanitary abortion, indicators of such cases should be more investigated. In this review various articles were investigated in different data bases such as google, SID, Magiran, Noormags and Iranmedex, then using certain keywords such as abortion, medical abortion and illegal abortion 29 articles were chosen to be investigated further. Eventually it was concluded that the criterion of hardship was a highly qualitative definition and not a quantitative one. Therefore, it’s impossible to express a general law to apply on all cases. For example, it is possible that a sentence should be considered as hardship for a particular person, while this could not be applied for all of people. So in the case of abortion, unbearable hardship should be identified in a particular case and it cannot be generalized to all cases.

Increasing resort of people to the banks make them to access classified information of the customers such as financial status, balance of the account and personal information. In order to gain the trust of customers and prevent Personal and commercial losses and economic abuse, banks make these data confidential and refused disclosure of them. Although the protection of banking secrets is an inevitable principle concerning social necessities such as confronting crimes like money laundering, terrorism financing, tax evasion and the need for financial transparency, it is appropriable in such areas. These exceptions, however, varies from country to country but we seen more common trends in all.
This paper shows the basis, sources, scopes and the effects of banking secrecy in Iranian law and note the necessities of legislation by that.

This Islamic rule is one of the most important rules in order to protect legal system and prevent it from disorder in social human life. The meaning of this rule is that, there is no law devised that violates the order of human life. The most important evidences for the validity of this rule are Islamic tradition and wisdom. This article shows the status of this subject in purposive and governmental jurisprudence and explains its conditions and the effects of its application in Islamic law. Finally, for the first time it seeks with inductive method for the application of this principle in Islamic law and with regard to many evidences and by considering scholars’ opinions (fatāwā) proves that we could consider this rule as an indispensable rule governing social Islamic law and rely on it.

The current paper aims to examine the liability observed in sphere of presentation of goods and services with the infraction of special codes and regulations related to advertising or general codes or regulations of liability with contractual or non-contractual basis. Specifically، there are not any mentions about all kinds of these liabilities in the rules of Iran. The current research، which is conducted using descriptive method and legal analysis، examines what liabilities can be presented and also which of contractual basis or non-contractual foundations cover them in the light of advertising. This paper first provides the meaning of liability derived from advertising and then describes all kinds of contractual liability arising from defect، misrepresentation، fault، breach of implied terms. Finally، the liability arising from deception، loss، causation، firm offer in the light of advertising as well as its conditions are explained.