عقد وکالت

One of the most challenging aspects of the Agency Contract is determining the criteria for assessing whether the principal's interests are not respected from a scientific standpoint and in accordance with the prevailing custom of any given business. Furthermore, it is essential to ascertain the sanctions thereof.Failure to respect the interest of principal has long been the concern of jurists and then lawyers. While there is no doubt in the necessity to comply with the principal’s interest, there are a lot of difference of opinion in determining the effects of not observing the principal’s interest, and also the jurists consider it as a qualitative concept and rely on the custom in determining a standard for explaining the scope of principal’s interest. Performance of transactions without respecting the interest of the principal has always been a legal concern. Custom also deals with ambiguity in this regard, and as a result, the court refers the matter to the expert in the hearing, and the expert, due to the existence of a common scientific basis, ultimately gives an opinion intuitively and with perception, and the court has no way to control it Also, the courts have had a different approach regarding the sanction of non-observance of the principal's interest, and this adds to its ambiguity. However, the en bank members of the Supreme Court of Iran in its Unified Judicial Precedent No. 847 dated 2/25/1403, ruled on the non-effectiveness of contract till the approval of principal, but it still does not provide a criterion for determining non-compliance with principal’s interest, and the application of the notion of non- effectiveness of contract does not meet today's social needs.The lack of effectiveness of the transaction, which we find as the basis of a non-authorized contract in the traditional commodity markets, could be considered as an effective institution from the point of view of economic and social analysis. However, the lack of effectiveness of the transaction in the new goods and services markets as well as in the financial markets lacks efficiency and causes an increase in transaction costs.In fact, we are faced with the default of information symmetry in a small society with fast information circulation, and it has been compiled accordingly. This means that in primitive societies, people were quickly informed of all events, and as a result, the owner of a property could not have been unaware of the unauthorized transaction. Therefore, based on the assumption of symmetry of information, the legislator believed that if the owner of goods recognizes the transaction as a loss, he can disrupt it. In a traditional rural society with a limited population and with the presence of virtue-oriented and often religious people, the non-authorized transaction has always been based on the interest of the owner.So, Non-authorized transaction has an effective and efficient function in this social system and in that context, social relations (failure of market relations) such as moral hazard and free riding caused by asymmetry of information does not fail. The reason is that, first of all, in this society, information is exchanged quickly and the type of long-term relationship between the people of this limited society is such that it leads to participation and in this participatory process, the desire for free riding (working for one's own benefit and benefiting at the expense of another) and moral hazard (preferring one's own benefit over another's) decreases.Therefore, a non-authorized transaction in a rural society (with limited actors, and its own surrounding environment and social context) is considered as an efficient indicator, and the sanction of non-approval will not hinder this efficiency, even though in most cases we are faced with the subsequent acceptance of the owner and rejection of the transaction seems unlikely).In this article, we have used the library method and using the sources of legal science to answer the criterion and the sanction of non-compliance with the principal's interest, and we have tried to answer the above questions by using the economic analysis method.In order to determine the scientific criteria regarding non-observance of the principal's interest, the basics of economics and the theory of standard deviation are used as the basis for determining the extent of the principal's loss. The tolerable loss limit can be considered as the basis for determining compliance with the principal's interest.  Based on the theory of standard deviation, the tolerable loss limit in traditional and modern goods and services markets and in financial markets is scientifically explained. Using the theory of standard deviation regarding non-observance of interest has been suggested by the author for the first time.Then, based on the current legal interpretations in Iranian law, the author suggests his willingness to annul the contract at the level of very large losses and correctness by accepting the responsibility of the agent at the level of large losses. In the case of small losses, the contract is considered correct.In this scientific approach, the parties of any legal relationship, as well as in the stage of litigation, the court can easily make a decision based on scientific criteria. As a result, the validity or invalidity of a transaction becomes predictable, and thus we approach one of the indicators of justice, which is predictability.At the end, the author proposes to amend Articles 663 and 667 of the Civil Code as follows:Amended Article 663: The agent cannot perform an action that is outside the scope of the subject matter of agency or outside the limit of the powers delegated to him. The sanction of violation is the annulment (of the transaction).Amended Article 667 of the Civil Code: The agent must, in his handlings and performances act in the interests of his principal. The criterion of compliance with principal’s interest is the amount of the tolerable loss limit, the sanction depends as the case may be, the annulment of the transaction or the validity of the transaction with the responsibility of the defaulting agent. The tolerable loss limit is determined based on the financial criteria determined by the Government Board and with the proposal of the Minister of Justice.

Liability means compensation for damage caused by a person's act or omission, which has resulted in harming the rights of another person. The pillars of responsibility include four pillars: 1- the person causing the damage (who is called the lawyer in the present case), 2- the victim (who is called the client in the present case), 3- the occurrence of the loss, 4- the existence of a causal relationship between the damage and the loss. Conductor (causing losses). Power of attorney is a contract by which one of the parties appoints the other party as his representative to do something. Contractual responsibility is the responsibility resulting from breach of promise by the obligee in any contract. Non-contractual liability is the compensation for damages caused by the non-contractual act or omission of a person whose act or omission leads to harming the rights of another person. The main bases of the lawyer's civil liability are 4 acts or omissions. 1- Failure to respect the interests of the client, 2- Disclosure of the client's secrets, 3- Refusal to submit an account during the period of representation, 4- Failure to return the property and documents of the client. Therefore, the main bases of civil responsibility in the material behavior of the judge are the judge's fault and the judge's mistake.

The expansion of the institution of the bank in the societies and the effects of the legal relations formed in connection with it are so vast that it casts a shadow on all the economic aspects of human life. The preparation of a legal form for investment deposit within the framework of certain contracts led him to establish Article 559 and in the struggle of this thought, the mudarabah contract has taken precedence over other forms, but the legislator, by establishing the law on banking operations without usury, is inclined to the proxy contract. The existing works, by emphasizing the differences between the power of attorney contract and the investment deposit account, have emphasized the uncertainty of the legal relationship that has occurred; The position that is in the order of erasing the problem statement; Because simply calling the legal relationship indefinite without prescribing a special framework and rules will not only solve the problem; On the one hand, it will cause many problems for the banking network, such as what is the form of the relationship between the depositor and the bank and what rules does it follow, and on the other hand, it will cause conflicting opinions in the judicial system; In this article, an attempt has been made to give a logical answer to the problems raised by this group on the legislator's position of the law on banking operations without usury, with the help of the descriptive-analytical method and by adhering to the opinions of the Imami jurists and the general rules of the civil law, and in this way, the legislative theory Based on the power of attorney, knowing the above relationship is proved.

In Islamic jurisprudence, with the aim of protecting the oppressors, or bringing together an experience with love, or because of the existence of historical traditions that justifies the authority of the father and grandfather, The father has the authority to marry a girl and a minor boy, and to allow the virgin daughter to marry. Articles 1041 and 1043 of the Civil Code also confirm with terms the authority of the father and the marriage of a girl under thirteen years and a boy under fifteen years subject to the permission of the father and discretion by court and the marriage of the virgin girl is also valid with the permission of the father. But is this discretion available only to the father, or is it possible to transfer it through the wills and attorney? This article, by examining the nature of the permission and reasons for the choice of the father and the issue of representation, seeks to prove that the province in marriage is not in itself to be divested to another; But representation for the father's permission in the marriage contract is not inherently an obstacle. However, unlike the customary procedure in the notary publics office, for reasons of expediency, the father can not allow the minor's marriage or the marriage of the virgin daughter to the delegate. Of course, in the case of a minor marriage or a virgin daughter with a certain person consenting to her father, It is permissible to give simple representation to an attorney to announce the permit.

Good faith is to do the tasks honestly, fairly and logically in way that parties of the contract expect it from each other along with making efforts to respect rights of others and getting away from any bad faith and deception. Articles 667 and 680 of civil law and article 399 of commercial law indicate the attention of Iranian legislature to Good faith principle. One of the consequences of studying good faith principle in Emamiyeh jurisprudence and civil law is proxy contract. Proxy is a contract in which someone chooses someone else to do something as his or her representative. Nature of the proxy is based on complying with ultimate good faith by both parties. So, it is possible to declare the invalidity of contracts in which agent does not act with regard to good faith. However, necessity of observing good faith is a mutual obligation that both client and agent have to comply with that along with protecting third party that owns good faith in apparent proxy.

Vast majority of lawyers believes that commission agreement has the legal nature of an agency. Notwithstanding, in view of the obvious differences between the said agreement and the agency contract, it is incorrect to describe commission in the light of agency contract. Therefore, the legal nature of the said agreement must be determined properly with respect to the essential attributes and elements of the said agreement. Contract of hire of persons, that has been fruitful in analysis and practice, may properly describe the nature of the said agreement, and make it compatible with the Iranian legal system.