جستجوی مقالات مرتبط با کلیدواژه « تعهد به وسیله » در نشریات گروه « فقه و حقوق »

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.

Most legal experts believe that contract brings about obligation and for this reason, as long as the contract is valid the parties are required to follow its content. Contrary to the aforementioned view, the study of contracts in Iranian law shows that some contracts (e.g. representation) are not associated with certain obligations rather they are just a token of one’s right to represent someone. Nevertheless, one cannot deny that such contracts as representation, endowment or reward are considered to be binding under a number of conditions. The main challenge of the present essay is identification of the source of bindingness of some contract and the analysis of the type of obligation resulted from the contract. The authors after the comparative evaluation of the extensions of the obligation in Iranian and British laws have concluded that the inclusion of the price in the contract leads to the emergence of obligation of the conclusion and creation of normal confidence on behalf of the parties leads to the obligation of the means for another party. Acceptance of the theories of price and normal confidence in Iranian law will lead to the emergence of a new basis for the bindingness of the contracts and also the creation of a barrier for prevention from the right. In addition to the above results, distinguishing between the obligations of the result and the obligations of the means will be useful in the mechanism of the demonstration of the violation of the contractual obligations.

Issues related to physician's liabilityis as old as the science of law itself. This article has been written while considering abundant studies carried out on the principle of physician's liability with presuppositions like doctor's responsibility, the requirement to prove the doctor's failure case of obtaining innocence, etc. which has turned into common statement and jurisprudence. The current study is trying to prove that the relation between doctor and patient is contractual in most cases. Even in unnecessary cosmetic (fantasy) surgeries, the doctor is obliged to the result; and in case of failing to obtain the [expected] result, the doctor is considered as the defiant of the contract and the guarantor of breaching the contract commitments. No reasons exempting physician's liability such eshesan principal cannot be enforced in this commercial relation