mohammadhadi javaherkalam

Introduction :

Contracts serve as a foundational mechanism through which individuals and entities engage in transactions, ensuring that their rights and obligations are clearly defined and legally enforceable. Within various legal frameworks, contracts may be either unconditional or conditional, with the latter incorporating specific conditions that must be fulfilled for the contract to remain valid or for certain obligations to be activated. The concept of embedded conditions [proviso], known in Islamic jurisprudence as "Shart-e Zemn-e 'Aqd" [proviso], plays a pivotal role in the formation and execution of contracts. The interrelationship between the contract and these embedded conditions has been the subject of extensive legal analysis, particularly within the context of Islamic law. This article delves into the issue of whether it is feasible to annul an embedded condition within a contract while preserving the underlying contract. It explores the legal ramifications of such an action, addressing both theoretical perspectives and practical implications within Islamic law.

Research Question:

 The primary research question guiding this paper is whether it is legally feasible to rescind a condition embedded within a contract without nullifying the entire contract, particularly within the context of Islamic law and jurisprudence. This inquiry leads to several subsidiary questions: What is the legal status of the contract if a condition is annulled? Does the rescission of a condition automatically trigger the dissolution of the contract, or can the contract survive independently? Furthermore, under what circumstances, if any, might a party have the right to annul a condition without affecting the contract's validity? This article seeks to answer these questions by examining the conditions under which a contract and its embedded conditions can be legally separated, and the potential consequences of such an action.

The hypothesis proposed in this article is that, according to Islamic jurisprudence, it is indeed possible to rescind a condition embedded within a contract while allowing the primary contract to remain intact. This hypothesis is grounded in the analysis of Islamic legal principles, which suggest that the embedded condition and the contract, although interrelated, can be treated as distinct legal entities under certain circumstances. The article posits that the mutual dependency between a contract and its conditions is not absolute and that there may be instances where the rescission of a condition does not necessitate the annulment of the contract. Specifically, the authors hypothesize that Islamic jurists, particularly those aligned with certain schools of thought, may permit the severability of a condition from the contract, thus enabling one party to annul the condition while preserving the contract's validity.

Methodology & Framework, if Applicable:

This article employs a doctrinal research methodology, focusing on a detailed analysis of legal texts, precedents, and principles within Islamic jurisprudence. The research is primarily library-based, involving the examination of classical and contemporary legal sources that address the relationship between contracts and embedded conditions. The doctrinal approach is particularly suited to this study as it allows for a comprehensive understanding of how Islamic law conceptualizes the interplay between contracts and conditions.The framework of analysis is structured around three key agreements that constitute a conditional contract: the main commitment, the ancillary commitment, and the agreement regarding the dependency of the main commitment on the ancillary one. By dissecting the conditional contract into these components, the article systematically explores the legal principles governing each aspect and how they interact. This analytical framework facilitates a nuanced discussion of the barriers to rescinding a condition while preserving the contract and provides a clear structure for examining the potential outcomes of such an action.

 Results & Discussion :

The study of the feasibility of rescinding a condition embedded within a contract while preserving the contract itself, particularly within the context of Islamic jurisprudence, reveals legal dynamics that have been insufficiently addressed in existing literature. Through a meticulous analysis of Islamic jurisprudence [Fiqh], the article uncovers several key findings that contribute to the understanding of conditional contracts and the potential for separating embedded conditions from the main contractual obligations.  Firstly, the analysis of the relationship between the contract and the embedded condition suggests that there are multiple interpretations within Islamic jurisprudence. These interpretations include viewing the condition as an integral part of the contract, as a suspended agreement, or as an independent yet related commitment. The authors ultimately favor the interpretation of the contract as conditional upon the embedded condition. This perspective is aligned with the common legal understanding of "conditioned and conditional" and emphasizes that the main contractual obligation is contingent upon the fulfillment of the ancillary condition. The article identifies three potential barriers to the rescission of an embedded condition: 1) considering the condition as an integral part of the contract that is subject to rescission; 2) the rule of the condition's dependence on the contract, which involves the effect of the contract's dissolution on the condition; and 3) the need to maintain the integrity of the contract or prevent its fragmentation. These barriers are crucial in determining whether it is legally feasible to rescind a condition without affecting the contract's validity. The discussion reveals that not all conditional contracts are created equal in terms of their susceptibility to the rescission of embedded conditions. Conditional contracts that include a condition of result or performance, which entail all three agreements (main commitment, ancillary commitment, and the dependency agreement), are subject to rescission. In contrast, contracts that include a condition of qualification, particularly when the subject of the condition is a "certain object," lack the ancillary commitment agreement, rendering the rescission of the condition irrelevant. Furthermore, the analysis shows that when the subject of the condition is an essential element or attribute of the main commitment, separating the condition from the contract is unreasonable. In such cases, the condition does not create a separate ancillary commitment, and its rescission would undermine the contract's integrity. The article also addresses the rule of the condition's dependence on the contract, which raises the question of whether the condition continues to exist if the contract is dissolved. The findings suggest that while the condition and the contract are related, they are not inseparably linked. The rescission of the condition by one party does not necessarily nullify the contract; instead, it destabilizes the contract, giving the other party the right to respond. The article outlines various scenarios in which the rescission of a condition might occur and the corresponding effects on the contract. These scenarios include situations where the condition is not fulfilled, becomes impossible due to external factors, or is affected by the behavior of either party or a third party. The general principle that emerges is that the rescission of the condition can lead to the destabilization of the contract, but the right to annul the contract depends on the specific circumstances and the conduct of the parties involved.

 Conclusion : 

The research concludes that within Islamic jurisprudence, it is indeed possible to rescind a condition embedded within a contract while preserving the contract itself, although this possibility is contingent upon the specific nature of the condition and the contract. The key findings of the study indicate that the relationship between the condition and the contract is nuanced and multifaceted. The possibility of rescission is determined by the type of condition, the existence of ancillary commitments, and the interdependence of the contractual obligations. The study reached is that while the main and ancillary commitments within a conditional contract are separate yet related, their connection does not make them inseparable. The rescission of a condition does not automatically lead to the nullification of the contract, but it does destabilize the contractual relationship, giving the other party potential grounds for further legal action. The article suggests that Islamic statutory laws should explicitly address the consequences of rescinding a condition embedded within a contract. Specifically, it recommends that laws clarify that the rescission of a condition by one party may give the other party the right to annul the contract unless the rescission is attributable to the conduct of the party seeking to annul the contract. This recommendation aims to provide clearer legal guidance and reduce ambiguity in contractual disputes involving embedded conditions. This research contributes to the legal discourse on conditional contracts within Islamic law by providing a detailed analysis of the feasibility and implications of rescinding embedded conditions. It offers practical recommendations for legal reform, emphasizing the need for clearer statutory provisions to address the complexities of conditional contracts and the rights of the parties involved.

All legal disputes must eventually reach a conclusion, and the principle of res judicata serves as an effective guarantee to achieve this purpose. The foundation of the res judicata doctrine lies in preventing the re-litigation of claims and avoiding conflicting judgments. In criminal matters, this principle is further complemented by the principle of ne bis in idem, a fundamental human right and an aspect of the right to a fair trial. Res judicata is a mandatory legal doctrine closely tied to public order. Thus, not only are the parties entitled to object to the reopening of a settled matter, but judges are also obligated to uphold the principle. However, for various reasons—such as the unwillingness or ignorance of the parties, or judicial negligence—multiple proceedings on the same subject may occur, resulting in inconsistent judgments. Mechanisms like cassation and retrial are provided by civil procedure codes to resolve judicial contradictions. In criminal proceedings, beyond the necessity of overturning judgments during appeal or cassation, Article 474(4) of the Criminal Procedure Code of the Islamic Republic of Iran (2014) has recognized conflicting judgments as a new ground for revision. This provision acts as a legal mechanism to address violations of res judicata. Therefore, the term "same charge" is interpreted as referring to the "same conduct." Due to the severe nature of criminal punishments, criminal revision is restricted to convictions. This limitation has created significant challenges in addressing certain instances of conflicting judgments.

Waiving Resolutory Condition; Criticism and Analysis of Judicial Precedent with Comparative Insights from French and English LawThe article explores the feasibility of waiving a resolutory condition through judicial review and a comparative examination between the legal systems of France and England using a descriptive-analytic research method to achieve uniformity in judicial precedent between the courts. The primary question is, after fulfilling the resolutory condition, is the contract valid just by the parties’ agreement to waive the condition and remain of the contract? Is the contract reinstated? Could the Beneficiary (the person in whose favor a condition) waive a resolutory condition by himself and therefore, prevent the termination of the contract and reinstating the contract? The nature of the resolutory condition and its consequences on the contract, the dependence of the termination condition on the will of the person in whose favor a condition is made before and after the fulfillment of the condition has been examined. The most important impediment to the fulfillment of the resolutory condition has been reviewed, It was concluded that before the fulfillment of the condition, the parties’ agreement to waive the condition is valid, as Could the person in whose favor a condition is made waive a resolutory condition by himself. Also, the parties’ express or implied agreement to waive the termination and maintain the contract is reputable even after fulfillment of the resolutory condition, as the will of the person in whose favor a condition is made to bind a contract and not invoke its termination, will be sufficient for reinstating the contract. Thereupon, the jurisprudence shall avoid unnecessary termination of many contracts by considering the results acquired by the article.Keywords: Resolutory Condition, Waive (Withdraw), Nature of the Condition, Suspension, Applying to Termination (Dissolution of Contract), Restoration of the Non-Existent, Constructive Subjects.

There are two opinions about the effect of termination of the contract on liquidated damage clause, it's non_fulfillment or it's delay in fulfillment. the first opinion is the lapse of the clause due to the termination of the contract and the second is survival of creditors right about demanding the liquidated damages. In this article with a comparative method ,aforementioned issue has been studied in the jurisprudence of Iran, France and England and the findings indicate differences between the courts opinions of these countries. Supreme Court of England ruled based on the first opinion and it didn't accept substitution of the creditor Unless the parties have explicitly stipulated it in the contract.In French law, some courts consider the obligation to be an independent clause of the contract, which can be survived even after the termination of the contract.But some of the jurists believe that liquidated damages for non-fulfillment of the obligation can be demanded even after termination of the contract; However, delay liquidated damages are not claimable after termination of the Contract. In Iranian's Legal Precedent System, many differences of opinion have arisen But it seems that the final criterion in this field is the intention of the both parties However, as a whole, the distinction presented in French legal doctrine can also be applied as a guide in Iranian law.

Critical and analytical view of the procedural unity verdict no. 805, dated 1403/02/25 by Iran’s supreme court general assembly, focusing on legal doctrine, jurisprudential teachings, and judicial precedent, reveals the following conclusions: One of the fundamental disagreements in the jurisprudence in recent years was to answer the question of whether in general representation, based on which the “representative has the authority to transfer the subject of the contract to anyone, even the representative himself at any price and under any condition he deems fit” the representative is obligated to consider the principal's best interest, or if representative, given the broad powers granted, has no duty to consider the principal's benefit. Supreme Court General Assembly by unity verdict no. 805, dated 1403/02/25 did not accept the opinion of the majority of judges in this regard, emphasized and expressed the need to respect the interests of the principal. In these terms: According to Article 307 of the Civil Law approved in 1307, it is prescribed to conduct a transaction in relation to another's property by the representative, on the other hand, according to Article 667 of the same code, the representative must respect the interest of the principal in his actions. Therefore, when a person represents another person to sell his property to any person, even the representative himself, it is assumed that the representative is acting in the best interest, and if the representative sells the original property at a low price, with reference to Article 1073 of civil code the transaction is invalid and the original can reject and void it. It is obvious that the issue of the verdict does not include the letters of representation before issuing the verdict. This opinion is acceptable because, in addition to the jurists of the Imami who have made the validity of the representation subject to the observance of the principal’s expediency, the implicit will of the parties and the principle of non-delegation and non-representation also confirm it.2. The criterion of non-observance of the principal's interest and the criterion of concluding a contract against his interest and the status of this transaction is one of the differences of opinion between legal doctrines and judicial practices. In this way, some judges and professors of civil rights considered only intentional rendering the transaction ineffective. But the verdict in question, following the opinion of the majority of Imami jurists and legal doctrine, without making a distinction between intentional or unintentional, granted the principal the right to request the court to declare the transaction void null and void. Therefore, what is important and the criterion is the non-observance of the principal's interest, not the representative's bad faith 3. Another challenge of the judicial procedure is whether it is possible to demand damages from the representative and if the answer is positive, how much it is. In this regard, some courts used the price stated in the document as a criterion, and others used the actual price of the subject matter of representation at the time of concluding the contract. Although the verdict has not been determined in this decision, without a doubt, the principal can claim damages, including the actual price, by referring to the note of Article 19 of the Criminal Procedure Law.4. Although apparently, the verdict violates the rights of third parties in good faith, the analysis of this verdict should be done in such a way that the rights of these people are not violated. One of the ways to respect the rights of third parties in good faith is to consider the official transfer of property to them as lost in law. The claim of the representative regarding the return of the property against third parties in good faith should not be accepted. Instead, the principal should be able to claim its equivalent from the representative or the third party with malintent especially when the property has changed significantly, considering that the law of Mandatory Registration of Real Property Transactions 1403 enacted by the Expediency Discernment Council has prescribed the loss in law (constructive loss) in several articles.

In This paper, analyzes the possibility of registering generic and general terms, which in some cases resemble or correspond to the names of public or governmental organizations, as internet domain names. Through a descriptive-analytical research method and with the aim of critiquing judicial practice, the study examines the rulings issued by the initial and appellate courts of Tehran Province. The main question posed is whether generic terms like "etax" can be registered as internet domain names. By analyzing the nature of domain names and distinguishing them from similar concepts, along with a critique of the relationship between third-party material, moral, and intellectual rights, as well as an analysis of consumer rights, the study concludes that generic terms associated with public and governmental organizations fall within the public domain and are intended for public use. As such, they cannot be subjected to private ownership through domain name registration. Furthermore, given that transparency and trust are key elements of e-commerce, achieved when consumers can distinguish between products and services, domain names, as tools of e-commerce, must support this essential distinction. Therefore, the registration of generic terms that could mislead or deceive consumers must be prohibited. Protecting consumer rights requires preventing the registration of generic names similar to or related to other areas of intellectual property under the guise of domain names. As a result, it is recommended that judicial practice, in line with the findings of this study, nullify the registration of generic domain names corresponding to public or governmental terms, thereby preventing misleading registrations and supporting consumer rights.

This article examines the evolution of the basis for medical civil liability through the lens of judicial practice, legislative experiences, and French legal doctrine. It employs a descriptive-analytical research method. The aim is to demonstrate the shortcomings of Article 495 of the Iranian Islamic Criminal Code regarding physician liability. This article argues that Article 495 assumes no medical malpractice, which stands in contrast to comparative studies advocating for expanded physician and medical center liability without fault, alongside solutions for compensating victims. The study of French law reveals a shift from absolute physician immunity to expanded no-fault liability through various legal tools. In French law, the principle of fault-based liability for medical malpractice has numerous exceptions. Due to the difficulty of proving medical fault and the need to compensate victims, even in cases where no fault exists in the conventional sense, France utilizes a dual basis for physician and healthcare center liability. Additionally, proving fault has been simplified. Islamic jurisprudence, however, distinguishes between loss and attribution when determining physician liability. In the first case, responsibility is without fault (except under the rule of benevolence), while the second case involves fault-based responsibility. Article 495 of the Islamic Criminal Code, however, solely considers physician liability to be entirely fault-based. In most cases (as evidenced by patient acquittals in hospitals), the burden of proving fault falls on the injured party. Furthermore, the article fails to address the liability basis for hospitals and medical centers, both private and public, nor does it address liability for defective medical products and equipment. Therefore, the provision in Article 495 not only contradicts jurisprudential teachings, but the Iranian legislator has also taken a path entirely opposite to global developments. While general rules in gross negligence cases dictate that mere allegations of bodily harm are sufficient to establish liability and compensate the victim, the possibility exists for gross negligence involving a physician. For example, during abdominal or chest surgery, if scissors slip from the physician's hand and blind the patient, the physician would be liable under general rules. However, in discussions of physician liability where a crime is attributed to the doctor unintentionally and without fault, the legislator may have excluded compensating the patient to avoid imposing financial burdens on relatives ("aqeleh"). French law offers an alternative. Instead of imposing undue liability on the physician or their kin, other institutions, such as insurance or compensation funds, can be utilized. Although French and Islamic legal systems reach similar outcomes through different paths, minor discrepancies remain.

The foundation of civil liability for service providers is not uniformly interpreted across different legal systems. In Imami jurisprudence the narrations indicate that the Sacred Lawgiver, to enhance caution in service provision and protect victims, has established a presumption of liability for service providers placing the burden of proof for exoneration on them, or at the very least, presuming their fault in liability arising from causation, obligating them to prove the absence of fault. This solution is also suggested to be accepted in Maliki jurisprudence specifically for craftsmen, although there is contrary opinion. In Hanafi and Hanbali jurisprudence, the liability of a common hireling is based on "destruction," whereas in Shafi'i jurisprudence, the presumption of non-liability is stronger. In European countries the 1991 European Commission proposal envisaged a presumption of fault for service providers, placing the burden of proving the absence of fault on the service provider, although this was not enacted due to member states' disagreements.However, there is a tendency to facilitate the proof of their fault. Therefore, as specified in the comprehensive research conducted in 2004 commissioned by the European Commission and accepted by the judicial practice of France, the United States, and the European Court of Justice, the liability of service providers is based on fault, and the burden of proof lies with the "consumer." Consequently, the solution accepted in Imami jurisprudence, for the aforementioned reasons, is preferred over the solutions established in the other legal systems studied, and it is proposed that the global community should also adopt this approach.

Ownership, a cornerstone of legal systems worldwide, delineates the relationship between individuals and their property under the purview of the law. In Islamic jurisprudence, this relationship is imbued with specific principles and interpretations, reflecting a nuanced understanding of property rights. Among the varied conceptions of ownership, the notion of Mora'a ownership emerges as a distinctive yet underexplored facet. While conventional forms of ownership, such as established and precarious ownership, have been extensively studied, Mora'a ownership remains relatively obscure, necessitating a focused inquiry into its nature, instances, and legal implications.

The fundamental inquiry guiding this study pertains to the scope and characteristics of Mora'a ownership within the framework of Islamic jurisprudence and Iranian civil law. Specifically, the research seeks to elucidate whether ownership, traditionally categorized as stable or precarious, encompasses additional modalities, including Mora'a ownership. By examining the conceptual underpinnings and practical manifestations of Mora'a ownership, the study aims to discern its unique features and distinguish it from other forms of ownership.

Building upon existing scholarship and jurisprudential insights, the research posits that alongside conventional paradigms of ownership, such as established and precarious ownership, Mora'a ownership constitutes a distinct category with its own defining characteristics. Contrary to prevalent assumptions, Mora'a ownership transcends the binary framework of stability and precarity, offering a nuanced understanding of property rights within Islamic legal traditions. Through a systematic analysis of legal texts, judicial decisions, and scholarly discourse, the hypothesis contends that Mora'a ownership manifests in diverse contexts, necessitating a comprehensive examination to grasp its implications fully.

This research adopts a primarily doctrinal approach, drawing upon Islamic jurisprudence, Iranian civil law, and legal scholarship to explicate the concept of Mora'a ownership. Utilizing a comparative methodology, the study juxtaposes Mora'a ownership with established legal doctrines and precedents, elucidating its distinguishing features and implications. Furthermore, the research incorporates a contextual analysis of relevant judicial decisions and legislative provisions, providing insights into the practical application of Mora'a ownership within the contemporary legal landscape. By synthesizing doctrinal analysis with contextual inquiry, the study endeavors to offer a comprehensive understanding of Mora'a ownership and its significance within legal theory and practice.

The examination of Mora'a ownership reveals distinct characteristics that differentiate it from other forms of ownership, such as precarious, temporary, and contingent ownership. While precarious ownership entails the possibility of termination under specific conditions, Mora'a ownership denotes a unique scenario where ownership, although established, may cease retroactively due to impediments that invalidate its inception. This distinction is crucial, as it elucidates the nature of ownership rights and obligations, particularly concerning the vesting of benefits.
     In Islamic Sharia and Iranian legislation, various instances of Mora'a ownership are explicitly identified, underscoring its relevance within legal frameworks. For instance, inheritance rights and the wife's share of her husband's immovable property are deemed as Mora'a ownership, as per specific provisions in the Iranian Civil Code. Additionally, fetal ownership concerning inheritance and the wife's entitlement to alimony exemplify scenarios where ownership status is contingent upon specific circumstances, thereby aligning with the principles of Mora'a ownership.
     Furthermore, recent legal precedents, such as the Iran Supreme Court Decision No. 810 - 1400 SH, reinforce the applicability of Mora'a ownership in contemporary jurisprudence. This ruling, which recognizes subsequent buyers' ownership despite contractual contingencies, underscores the retroactive effect of Mora'a ownership in contractual relationships, thereby expanding its scope beyond traditional interpretations.
     However, certain misconceptions persist among legal scholars regarding the classification of ownership instances, leading to erroneous categorizations of Mora'a ownership as precarious ownership. To rectify such misunderstandings, it is imperative for legal practitioners and scholars to adhere to the delineated criteria and accurately apply the concept of Mora'a ownership to analogous scenarios. Moreover, voluntary and contractual instances, such as conditional contracts and suspended sales, underscore the potential for Mora'a ownership to arise in diverse legal contexts, further substantiating its significance within legal theory and practice.

In conclusion, the study of Mora'a ownership illuminates a nuanced dimension of property rights within Islamic jurisprudence and Iranian law. Defined as ownership established but subsequently invalidated due to inherent obstacles, Mora'a ownership necessitates careful consideration to distinguish it from similar concepts such as precarious ownership, temporary ownership, and contingent ownership. The delineation of Mora'a ownership instances, including inheritance rights, spousal entitlements, and contractual contingencies, underscores its practical relevance within legal frameworks.
     To prevent confusion and foster a coherent understanding of property rights, it is imperative for legal scholars and practitioners to accurately apply the principles and implications of Mora'a ownership to relevant legal scenarios. By enriching and consolidating this indigenous theory within the legal system, stakeholders can ensure the equitable administration of justice and uphold the integrity of property rights in Islamic and Iranian legal contexts.

In this article, the civil liability caused by asbestos has been studied comparatively in French and American law, to provide models to solve the shortcomings of Iranian law, with  a descriptive-analytical research method. The main question was about the bases and elements of the responsibility caused by asbestos and the effective solutions to support asbestos victims. The result was that in terms of the basis of responsibility, in American law, the responsibility is based on strict liability. French law bases the responsibility on the system of employer's responsibility towards the employee, and by establishing the safety obligation of the type of obligation of result and the unforgivable fault of the employer and the assumption of his knowledge, only force majeure is excluded. In terms of the conditions and elements of civil liability, both countries have supported asbestos victims by developing the concept and scope of compensable damages and the assumed relationship of responsibility. In order to guarantee and speed up the payment of damages, in French law, a "special compensation system for asbestos victims" has been established and by creating an independent fund, the cases of reference to the fund and the amount of damages that can be compensated by the fund, with certain mechanisms, has been established. American law has also taken the same steps. It is suggested that our legislators should establish a special compensation system for asbestos victims by leaving aside fault as the basis of responsibility and facilitating the proof of causation.

Acomparative study in Iranian and French law has been investigated and reviewed in this article around the contract of assignment and the necessity of drawee (Arabic: محال علیه, assignee)’s consent in order to use the results of the discussion to prepare the general theory of cession of debt and seeking in Shīʿa jurisprudence. The question is, who are the parties to the contract of a bill of exchange and whether it is necessary to obtain the consent of the drawee for the conclusion or effect of the contract of the bill of exchange? Moreover, is it possible to deduce the institution of transfer of religion and cession of debt and novation of debt in a direct manner from this discussion in Shīʿa jurisprudence and civil law and is it possible to analyze the second and third paragraphs of Article 292 Civil Code based on it? We came to the conclusion by a descriptive-analytical research method and by studying jurisprudence texts and legal doctrine that the stronger opinion in Shīʿa jurisprudence and Iranian law is that the consent of drawee (assignee) is necessary for the occurrence of the bill of exchange and he/she is considered as a party to the contract and the death or incapacity (Arabic: حجر) of each of drawer (Arabic: محیل, assignor) or creditor (Arabic: محتال, beneficiary of a draft) or drawee (Arabic: محال علیه, assignee) between offer (Arabic: إیجاب) and the last acceptance (Arabic: قبول) causes the extinction of the validity of the agreement (Arabic: تراضی, mutual consent). In addition, among the rules of bill of exchange and issues which are discussed in jurisprudential texts and civil law can accept the validity of cession of debt and novation directly in Shīʿa jurisprudence and Iranian law. Thus, contrary to what was common in Roman law and old French law, the “active deb” (claim), like tangible assets can be transferred to another even without the consent of the debtor. Also, unlike Roman Law and Old and New French Law (before the 2016 and 2018 reforms), “debt” is separate from obligor and the debtor can transfer the debt to a third party with creditor’s consent by materializing this constructive being which has long been accepted in Shīʿa jurisprudence and finally recognized it after centuries of disagreement and doubt in 2016.

In this article, the legal status of exchange resulting from the voluntary transfer of common property is examined from the perspective of judicial procedure and Imamiyyah jurisprudence and its effect on the formal and ritual rules of filing legal and criminal lawsuits related to the transfer of common property has been analyzed in order to reduce the difference of opinions of the courts and move the current scattered procedure towards a unified procedure. By examining and analyzing judicial practice, legal doctrine and the opinions of Imamiyyah jurists and authentic Islamic texts, the conclusion was reached that if the joint property is transferred to a person or other persons in a single contract and with a total exchange, the principle is based on the dissolution of the company and lack of flow. Distribution is in a contract and the claim of each of the former partners is independent from the others, because with the dissolution of the contract to the number around it, each of the sellers has the right to file a lawsuit and claim for his own share, and there will be no right for the other partner in the price received. However, according to the received news and based on the unity of the criteria of Article 606, in case of the inability of the buyer to pay the demand, the partner who has not received the price has the right to refer to the partner who collects the price, unless the inability occurs due to the partner's procrastination and delay.  Also, in the end, it is proposed to add another clause to Article 587 while amending the civil law, and to consider the voluntary transfer of common property in exchange for the company's liquidation.

In this article, the criteria for identifying ‘waste in law’ or ‘as waste’ in Islamic law, by studying the rule of ‘transfer to a third party of good faith’ in judicial practice and the proposal to amend the Articles 323 and 325 of the Iranian Civil Code, with the aim of resolving disputes between courts and creating a uniform practice in courts have been analyzed. The fundamental question is what the rule and criterion for the realization of ‘waste in law’ is, which has been used and cited in Iranian laws and judicial practice in recent years, and whether it is possible to analyze and present the various criteria that have been proposed in Imamiya jurisprudence to a single criterion format or more general criteria? With an analytical-descriptive research method and extensive study in Imamiya jurisprudential texts and judicial practices, it was concluded that the majority of the various criteria accepted by the Imamiya jurists can be interpreted in a general rule, i.e., ‘absence of dominance’. However, this lack of dominance is sometimes used in a very broad sense, sometimes in a very narrow sense, and sometimes in a conventional sense. In recent years, the judicial practice has adopted the transfer of property to a third party of good faith as a criterion for ‘waste in law’, especially if changes have been made in the subject-matter of contract. This is an idea that has also been applied in the proposal to amend some articles of the Civil Code. From an analytical point of view and in terms of compliance with Imamiya jurisprudential foundations, it is suggested that if the ‘Volenti non fit injuria’ </em>rule is applied and the transferee is in ignorance of right of others, waste in law, which is a legal presumption, is realized.

In this article, the jurisprudential foundations of the status of the transferee's possessions at the time of the transferor's right of termination have been studied, with the aim of organizing economic and commercial exchanges and removing the ambiguity of the legal system and judicial procedure through descriptive analytical research method. After examining the issue in numerous examples of the right of termination in jurisprudence and by proposing a general theory in Islamic law, it was concluded that the majority of jurists regarding the contractual right to terminate the contract like option of condition and conditional sale, due to the existence of an implicit condition, prohibits the buyer from taking possession contrary to the seller's right to terminate. But in the right of legal terminations like option of deception, defect and subreption, the possession of the buyer in the seller's property is allowed. On the other hand, some contemporary jurisprudents, regarding the right of contractual and legal terminations, prohibit the possession of the buyer only if the retention of the goods by the buyer or the return of the same to the seller in the event of termination is explicitly or implicitly stipulated. In addition, in cases where there is an explicit or implicit condition for keeping the object or forbidding possession of the consignment in the subject of the transaction, although both groups have not considered the buyer as "obligatory" to possess the property; However, from the "statutory" point of view, famous jurists do not consider the buyer's transactions as valid, but a group of contemporary jurists have considered the buyer's transactions to be correct and believe that the buyer must give the seller a replacement for the subject of the transaction. In both disputes, the opinion of famous jurists has been confirmed. Based on this, it is suggested that in order to organize the discussion in the legal system and create a uniform procedure between the courts and maintain security in commercial and economic exchanges, the decision of the Supreme Court No. 810-4/3/1400-4/3/1400 be interpreted and analyzed on this basis.

In this article, the effect of the nullity and termination of the original contract on the condition stipulated in it has been examined through a study of Iranian and comparative law with emphasis on Imami jurisprudence. The purpose of the present study is to delineate a rule for a condition which is independent from a contract, and we were faced with the question of whether the condition in any case follows the contract in the stage of formation and continuance, ie, is invalidated by its annulment and terminated by its termination. We concluded that the condition in the stage of contract formation is basically subject to the contract and as a result the "nullity of a contract having a condition" causes the invalidation of a condition, except in cases where it is understood from the intention of both parties that they believe in the independence of the condition and want it to exist regardless of the contract. For this reason, the clause concerning arbitration and preservation of secrets is valid even if one assumes that the contract is void. In addition, contrary to the apparaet meaning of Article 246 of the Civil Code, "termination of a contract that contains a stipulation" does not lead to the termination of a condition, except in cases where a condition does not have the capacity to be separated from a contract, such as `a condition regarding a specific quality or quantity or an ancillary contract, such as mortgage and guarantee in the form of a condition stipulated in a contract or if it is clear from the intention of the parties that they have made the condition subject to the original contract in terms of permanence and durability. Therefore, the aforementioned article should be considered only as the effect of the termination of the contract on the condition stipulated therin and limited to an inseparable and ancillary condition.

In this article, the conditions and effects of the force majeure in the amendments to the French Civil Code adopted in 2016, in order to use the solutions of the French legislature to eliminate the shortcomings of the Iranian legal system have been studied by descriptive-analytical research method. The main question is what are the conditions and characteristics of the force majeure and what is the criterion for distinguishing them, either personal or relative, and what effect does force majeure have on contracts, contractual obligations and contractual liability? A comparative study of Iranian and French law shows that the inevitability (impossibility of eliminating and repelling the accident) and the unpredictability of the accident, with a kind of relative criterion, and also the impossibility of executing the contract, with an objective criterion, are conditions for the realization of force majeure; But the externality of the accident is not an independent condition and refers to the same impossibility of preventing the accident (not being avoidable). Also, contrary to French law, the Iranian legislature did not anticipate the effects of the force majeure on the contract itself and the contractual obligations, and the effect of force majeure on contractual liability was also incompletely stated, which has led to differences between judicial decisions. Therefore, it is suggested that the legislator, in the form of a Civil Act amendment plan, in Article 227 stipulates the conditions for the realization (characteristics and criteria of distinction) of force majeure and in Article 229, the effects of force majeure on the contract and contractual obligations and compensation for non-implementation or Specify the delay in fulfilling the obligation.

The explicit meaning of the binding precedent No. 810, dated 2021-05-25, rendered by General Board of the Supreme Court is that if multiple transactions are subsequently concluded on a real estate and the initial  transaction is discharged by applying an option to terminate a contract due to violation of an agreed-upon condition (failure to pay the price installments within the stipulated dates), the first seller may terminate the initial contract and return the real estate from the next sellers on the grounds of the existence of an implied condition that the real estate remains with the seller and is not transferred to someone else, by operation of custom which is part of a contract and deemed as a condition mentioned in a contract, and because the buyer is actually or presumably aware of the right of option to cancel the contract and the possibility of returning the real estate to the seller. From the argument contained in the judgment and its contrario argument, it is understood that if the initial  contract was verbal and there was no possibility of informing the buyer of an option to terminate a contract due to violation of an agreed-upon condition or that it is possible to terminate the contract due to violation of agreed-upon condition or after concluding the initial  contract, in the form of an independent agreement or a clause added to a contract without it being stated in the initial contract, the dissolution of the initial  contract does not affect the subsequent contracts. However, mutual consent to terminate the initial contract does not invalidate subsequent ones. Also, the content of the binding precedent does not exclusively apply to "sale contract" and "an option to terminate a contract due to violation of an agreed-upon condition," rather, it is applicable to "all transactions" and "all options to terminate a transaction based on contracts" as well as to the case of "resolutory condition";  However, in options to terminate a contract based on law, the dissolution of the initial contract does not invalidate or automatically terminate the subsequent ones; A result that many Imami jurists and certain legal experts have confirmed, and it is also understood from the criteria of scattered articles of the Civil Act. In addition, although in the decision of binding precedent, the status of subsequent transactions in case of dissolution of the initial contract is not specified, in case there are options to terminate a transaction based on contracts, the subsequent transactions should be considered subject to observing the rights of others, and in case the initial contract is dissolved subsequent contracts become void from the time the first seller rejects the contract.

In this article, the facilitation of causation in medical accidents has been studied comparatively in Iranian and French law with emphasis on the jurisprudence of the two countries. The purpose of this study was to show the constructive role of French judicial procedure in the evolution of the legal system of this country and to provide constructive solutions to facilitate causation in medical accidents and to use the solutions provided for the Iranian legal and judicial system. By descriptive-analytical research method and by studying the jurisprudence, it was concluded that French courts have facilitated the causal relationship by using the presumption of attribution of damages or causality, the negation of other causes, equality of causes and conditions and the theory of loss of opportunity. . The jurisprudence of our country has also used some of these solutions, although in a more limited way and mainly in the case of infected blood. However, further use of these legal solutions is necessary in our country to establish a causal relationship in various areas of medical accidents and compensation of victims. Therefore, the use of these solutions as a judicial authority is proposed to the courts.

This article provides a critical analysis of Note 2 of Article 14 of the Iranian Code of Criminal Procedure, adopted in 1392 SH/ 2014 CE, which vindicates the victim’s right to both blood money (diya) and civil compensation. The purpose of this study is to determine the scope of the above-mentioned Article and of the legality of the claim to financial and non-financial damages resulting from bodily injuries on top of the blood money. The research method is descriptive-analytical, and the data was collected in library method, with emphasis on the analysis and interpretation of legal texts, Islamic legal views and the opinions of legal scholars.The answer to the question of whether the victim in bodily injuries can claim, in addition to blood money, the financial and non-financial damages stemmed from physical injuries or he is only entitled to receive blood money and is deprived of the right to receive any other type of damages depends, to some extent, on the rationale behind the blood money rule and on its subject and territory. It is, however, controversial among Islamic jurists, Imamis and Sunnis alike, Iranian Judicial opinions, and in the legal literature of Iran and other Islamic countries what kind of damages diya is intended to cover and whether or not it is compatible with financial and non-financial damages. In fact, the divergence over this issue in Iran, like some other Islamic countries, have reached its peak in recent years.Nevertheless, a closer examination of the sources from which the blood money rule is derived, in particular the authentic tradition (hadith) of Ghiyath, the Qur’anic verse "We have given dignity to human beings" (17-70), the Islamic jurists’ opinions holding blood money as an indemnity for a human being’s soul or member (especially some explicit rulings by contemporary Imami and Sunni jurists), as well as the inherent equality of the value of people’s lives and bodies regardless of their social statuses, skills, education, and ages, indicate that blood money in the Islamic legal system is merely to compensate for the loss of life, organs, or their abilities and has nothing to do with material and spiritual damage caused by personal injury.Hence, the financial losses resulting from bodily harm can be claimed in addition to the blood money and according to the general rules of civil liability, regardless of whether their amount is less or more than the blood money. Even if this view is not accepted, the sources on which the blood money rule is premised do not imply more than that the financial losses that were used to commonly result from personal injury in the early days of Islam, such as the costs of basic and simple treatment and the lost income, only to the extent of the average income of an ordinary worker, are included in the blood money. Damages beyond that, like the costs of today's complex surgeries are thus not covered by blood money and should be compensated independently.Also, spiritual damages caused by physical injuries can be claimed independently of the blood money according to some Islamic jurists and legal authors, and based on the history of this rule and traditions pertaining to it. But even if this view is not accepted, although it is arguable that non-financial damages ordinarily caused by bodily harm, such as enduring pain or suffering or beauty defects within the reasonable limits, are included in the blood money and are compensated by paying the blood money, these damages should be compensated separately and in addition to the blood money if they exceed ordinary levels, especially if they reach the level of neurological and mental disorders, acute distress, depression, anxiety, severe physiological imbalance etc., even if the extent of loss is less than that blood money covers.Accordingly, Note 2 of Article 14 of the Code of Criminal Procedure, which prohibits claiming spiritual damages and possible lost profits (deprivation of the power to work) where blood money is payable or punishments stipulated in the sources (ta’zirat mansus) are to be inflicted will be objected in this article. The Note implies, on the other hand, that financial damages caused by personal injuries (except for the lost profits) will be compensable in addition to diya (blood money), which is an important evolution in the legal regime governing the collection of blood money and damages. In order to remedy the shortcomings of the rule stipulated in Note 2 and bring it in line with  principles of Islamic law and national legislative system, the Note can be taken to include only spiritual damages within the ordinary extent (which is to be determined by forensic experts) as well as lost possible profits in the reasonable sense (such as the loss of the wages of an unskilled worker subject to the Labor Code), whichis covered by diya (blood money) and thus cannot be claimed in addition to it. However, if the said damages exceed the usual limits, they are not incorporated in the blood money and can be claimed separately. Also, the impossibility of receiving blood money and the lost profits in crimes with stipulated punishments has no logical justifications or rational bases. Therefore, this study suggests the necessity of  amending Note 2 of Article 14 of the Code of Criminal Procedure based on the arguments here outlined.

In this paper, the corona pandemic, as force majeure, has been analyzed by comparative study of Iranian and French law using descriptive-analytical research method. The main question is whether the corona pandemic or the actions of governments to deal with it are considered force majeure and exempt the obligor from fulfilling the obligation or paying compensation. In addition, what measures have the Iranian and French legislators devised to protect the parties to the agreement against the harmful effects of the corona crisis? By studying the legal doctrine, jurisprudence, acts and regulations approved in Iranian and French law, and by considering the deadly dangers and extreme fears of the virus, and in particular governments' efforts to curb the coronavirus, such as the closure of many businesses and guilds, closing borders and canceling flights and banning or restricting travel and the similar cases in the two countries, it can be said that unlike other pandemics, the corona pandemic has the potential to be a force majeure, especially during quarantine and government restrictions. But the corona pandemic cannot be considered absolutely and in all cases an example of force majeure; rather, it is subject to force majeure and its effects only in cases where the corona crisis is an external accident, unavoidable and unpredictable. Moreover, the French legislature has taken special measures to deal with corona's destructive effects on contracts, much more urgently and effectively than the Iranian legislature, to protect the obligor. However, the judiciary as well as the legislature, by adding a section to Article 229 of the Civil Code, can use the results of the present study to consider dangerous epidemic diseases (such as the crisis caused by Covid19- and other similar pandemics) as force majeure.

In this article, the basics of the theory of domination or non-domination of the self in Islamic jurisprudence and French law have been studied. The main question was whether there is a term "body and soul" in the narration of "people have dominion over their property" and in general, whether a person has dominion over his body and soul or whether domination and right over the soul has not been legislated, and in cases of doubt, is the principle on domination of the soul or on non-domination? By studying the narrations and criticizing the views of the Imami jurists and separating legal domination from real domination, it was concluded that the word "body and soul" does not appear in the aforesaid narration; and, all the verses and hadiths that forbid man from making harmful possessions in his body and soul deny dominion over body and soul as a rule. Therefore, the principle should be based on the lack of legal domination of man over his body and soul, except in cases where the Holy Shari'at has explicitly allowed a special possession or justifies the "necessity" ‌ and the basic rules of permitting such possession, such as repelling existing or potential harm, the need to save the life (of oneself or another) and save the life of a living human being, to repel more severe harm with lesser harm, the rule that something more important takes precedence over something important and the like. French law also recognizes the principle of non-domination of body and soul, and provides for exceptions in case of "medical necessity" for the treatment of oneself or another person and the sampling of organs and cells of a living person. French jurists have also opposed the approach of using human beings as a tool for scientific purposes with humanitarian and moral arguments, emphasizing human dignity and the place of the human soul in his body.

 In this article, the claim initiated by the buyer of a mortgaged property against a seller to oblige him to release a mortgaged property and to draw up a notarial deed in his name is analyzed and revised in the judicial precedent with emphasis on procedural rules.The main question is whether the aforementioned claim is admissible despite the priority of the mortgagor's rights and the binding precedent No. 620 decided by the General Board of the Supreme Court or there is no permission to accept the aforementioned action.Assuming its acceptance, what bases and principles do the procedural rules governing the aforementioned claim in terms of the manner of initiation of a lawsuit, the party to the lawsuit, the manner of enforcement of judgment, and so on follow. Using the descriptive-analytical method and with the aim of establishing correct and consistent judicial precedent, correcting incorrect procedures, and by reviewing various judicial opinions, it is concluded that a claim to oblige a seller to release a mortgage and to draw up a notarial deed in the name of a buyer is not in conflict with the rights of the mortgagee and the content of biding precedent No. 620. This is so since at first the mortgagee's rights are satisfied by the fact that the mortgager repays his debt to him and then mortgage is released. When this is accomplished, the notarial deed is transferred in favor of the buyer.Therefore, there is no need for a mortgagee to be a party to a lawsuit or to issue a judgment to oblige him to release the mortgage. Moreover, enforcement of judgment is subject to the general rules of "compelling a purchaser to fulfill financial obligations".KeyWords: action to compel a mortgagee to release a collateral, action to oblige a seller to draw up a notarial deed, sale of a mortgaged property, enforcement of judgment, judicial precedent

In this article, the effects of the “Void" of the contract as the origin of debt upon assignment contract have been analyzed in view of the Article 733 civil code.  Does the assignment contract become void when a contract related to the origin of the debt becomes void, or does it remain valid and the resulting obligations must be fulfilled? Additionally, with the annulment (becoming void) of the sale contract which is the origin of the debt, to whom should be returned the price obtained by the assignee (the assignor or the third-party assignee), and the third-party assignee may indicate to the assignor or assignee to return the price he paid; and also, to whom should the customer refer for the price (the seller or assignee). Using the descriptive-analytical research method and extensive study of Islamic jurisprudence and the analysis of Article 733 of the civil code, the study concluded that the void of the contract as the origin of debt causes the void of the assignment contract, and the assignee is obligated to return all things obtained illegitimately to the third-party assignee and the third-party assignee can choose whether to refer to the assignor or assignee in returning the price. This ruling applies to not only sales contracts, but any debt that is created through civil contracts or non-contractual events and an assignment is issued, and then it turns out that there was no debt; to begin with, the above rulings will apply.

In this article, proving fault in medical accidents, by emphasizing the expansion of the concept and scope of fault and providing solutions for the presumed fault of the physician, and explaining the types of fault in different stages of treatment, with the aim of using the experience of French legislation and jurisprudence our country has been examined.

The research method is descriptive-analytical and the data collection method is library, with emphasis on the interpretation of judgments and legal texts and the analysis of the views of lawyers.

In this research, the principles of fidelity, honesty, impartiality and originality of the research have been observed.

French jurisprudence has used various legal tools to develop the concept of medical fault and facilitate its proof; this should be taken into consideration by our courts as well.

French jurisprudence provides a broad concept and scope of medical malpractice and any fault on the part of a physician or health center, however simple and any misrepresentation of scientific information or medical conscience has been held liable and effective measures have been taken to facilitate proof. Also, the types and examples of faults in different stages of diagnosis, selection of treatment, medical practice and supervision, have been well separated and regulated by the doctrine and judicial procedure of this country and using personal responsibility and responsibility arising from other acts for the surgeon and Anesthesiologists and the admitting presumed faults and the like, have sought to facilitate the Compensation of victims of medical accidents; this is also suggested by the Iranian judicial procedure.Please cite this article as:Karimi A, Javaherkalam MH. Proof of Fault in Medical Accidents in French Law. Medical Law Journal. 2022; 16(57): e18.

When concluding an insurance contract, the insured has more information comparing to the insurer. At the other side the insurer takes the risks by relying on the materials represented by the insured. Because of this lack of balance in information, it is not enough in insurance contracts that the parties not having bad faith. This specific feature is the reason to create an important duty in insurance contracts which is named “the duty of representation”. The remedy for breach of the duty of representation in Iran Insurance Law is that when the breach of the duty is unintentional the other party has the right to rescind the contract and when the breach is intentional the contract is void. The England law through case law and recently by acting England Insurance Law 2015 is intended to adjust the remedy and limit the avoidance cases; but Iran Insurance Law acted 1316 without considering the developments of insurance industry during the century, is not trying to adjust or limit the rescission and avoidance cases. In this article some approaches are suggested to the legislator and case law to limit the rescission and avoidance cases cause of breach of the duty of representation.