پژوهشنامه حقوق اسلامی
پیاپی 40 (پاییز و زمستان 1393)

One of the important matters in the law of contract is breach of contract and sanctions (remedies) resulting from the breach. In the Iranian Law, resorting to sanctions (remedies) resulting from the contract breach is applicable, when the due date for performance of contract has been arrived and the promisor has not performed his contractual obligations; But it is possible, occasionally, prior to the due date for performance of obligation, on basis of express declaration of the promisor and; or due to existing circumstances, the promisee reasonably conclude that the promisor cannot or will not perform his obligation in due date. In this case, the doctrine of Anticipatory Breach of Contract propound as a new legal establishment and it permits to the promisor, by resorting to sanctions (remedies) of this theory, to gets rid of his obligations in the contract that will encounters with breach in the future, and proportionately enterprises to suspension or termination of contract. The fundamental question is whether the promise, prior to the due date for performance of obligation, by invoking to this doctrine, can be resorted to sanctions (remedies) resulting from breach of contract or be obliged to wait until the due date for performance arrives. Although such doctrine isn’t considered in Iranian law and there isn’t specific article allocated to it, but in this research through review of Iranian legal system and comparative study with Common Law system, in particular, English & American Law and also international law documents particularly convention on international sale of goods(1980), we conclude that the main bases of this doctrine is available in Figh & Iranian Law and by invoking to general rules and principles can be stated to acceptability of this doctrine in Iranian Law.

There is no doubt that any policy – making in oil industry will be closely tied to property rights. In the meantime, in the Institutional Analysis and Development Framework (IAD), as one of the most important approaches in the law and economics field, on one hand, like other institutional schools, any explanation of property rights is provided to responding of what the property rights is and knowing of owners, and in other hand, in policy- making subject, it emphasize on the understanding of the issues of any economic environment. So, by one interdisciplinary research based on law, economics and policy- making, we can say, policy- making in property rights of oil industry in Iran, that rents and privileges distribution in this industry depend on it, is subjected to proper reading of what property rights is and understanding of the property rights issues in the context of oil industry. For this reason, in this research, by analytical method and based on IAD Capacities, in addition to explanation of property rights situation in oil industry of Iran in the upstream and downstream sectors, it is tried to suggest a model of the property rights issues in the oil industry of Iran. As will be seen, by the interaction of sets of institutional and non-institutional variables, property rights situation is formed due to 13 specified path, that explain the property rights issues in oil industry of Iran and so, any policy – making in the property rights needs to focus on this thirteen’s path.

Initiative of act as a preliminary step of drafting proposals in legislatures is applied in different ways, according to the type of political regime (presidential or parliamentary). Such jurisdiction in the constitution of Iran is predicted for the cabinet and the supreme council of provinces and parliament representatives under the principles 74 and 102. However about the judicial bills determinated in the clause 2 of the principle 158 in which their drafting is in the jurisdiction of the head of the judiciary, there has always been this question whether these bills are as an independent initiative of act against the legislative bills specified in principle 74 of the constitution, or legislative bills are as the origins of the judicial bills and does not necessarily require the cabinet for approval. The guardian council's view based on the inconsistency of the act of joining a note to article 3 of the duties and powers of the head of the judiciary caused the head of the judiciary to be able to directly send the judicial bills to Majles after passing the legal deadlines.However granting such competencies to the head of the judiciary, besides being inconsistent with the principles 74 and 98 of the constitution based on the necessity to exploit the interpretation of the constitution so as to eliminate this ambiguity, causes the loss of focus on the state budget affairs and possibly entails the reduction of the public income or the increase of public expenditure, and on the other side, it will ruin the cooperation between the judicial bills and administrative matters.

Although the annual Budget of Government is enacted by Legislature and is also noticed to run as Law, it appears to be different from other laws, in terms of form and nature. So there is disagreement about nature of Budget. The main question is: “is Budget a sort of written code or is it some kind of document?” By referring to written sources, the first step is to figure out the distinction between Law and Budget be analyzed. The next step will be criticizing the legal doctrine be and finally, choosing the best viewpoint. Although there is no consensus on the meaning of the “law” and “Budget”; as respects to meaning of them and with regard to Substantive approach to concept of “law”, it seems that Budget, as it should be, is closer to “Document”; but, as it is (as enacted), is still near to “Law”. With formal approach to law, it is clear that Budget is Law.

One of the conditions of validity of a contract, is lack of gharar. Gharar is not permissible for one or both sides, otherwise the transaction will be canceled. because religious teaching prohibit us from gharar. Insurance is a legal, independent and binding contract that possibility of gharar in this contract exists. because it may not be safe from harm to parties of contract. In this paper we consider the fact that wether there is the possibility of gharar in contract of insurance or not and what is situations of gharar. One of the conditions of validity of a contract, is lack of gharar. Gharar is not permissible for one or both sides, otherwise the transaction will be canceled. because religious teaching prohibit us from gharar. Insurance is a legal, independent and binding contract that possibility of gharar in this contract exists. because it may not be safe from harm to parties of contract. In this paper we consider the fact that wether there is the possibility of gharar in contract of insurance or not and what is situations of gharar

Discussion of the root of contractual and tortious liability, and their unity or multiplicity is one of the most important and effective comparative debates between the two fields of contracts and irrecusably obligations (obligations by operation of law, obligations ex delicto); this is the issue which has not been judged correctly by the legislature in the law of Iran and many countries and has paved the way for the guidance of doctrine and case law. But, neither the judicial precedent nor the view of jurists of different legal systems, in this field, is the same. Among others, "Tank", the famous international French author, as one of the most outstanding lawyers in the fields of civil liability and comparative studies, whilst examining this subject- matter in various legal systems, has attempted to express his view on this issue with the expression of the legal position of the leaders of the two important Common Law and Roman- German legal systems and the most important drawbacks and justifications of belief in distinctions between these two liabilities. It seems that with the review of this matter's position in the civil law of Iran, the view of the mentioned scholar, based on the duality of contractual and tortious liability and yet practical unity among them, is generalizable in the law of Iran, too.

The law of civil liability is forced to adapt to the circumstances of time and space according to its objective, and because of the close relationship and the influence of environmental factors and elements such as inflation, scientific and technological progress, development expertise, the evolution of human needs, changing economic structures of the Islamic and international society, the transformation of common values - moral in human society, changing habits and people's habits, principles of scholars and the needs and requirements existed in the world. In this article, explaining that the time and space can initially cause the development of people and society needs and the development examples adaptable to civil liability rules or the creation of new examples and secondly to these rules can bring about change creative and affirmative rules of the law of civil liability and the creation of new forms of civil liability; discusses the evolution of civil liability law and on changing instances of civic responsibility (executive and conventional) under the effect of time and space requirements by specifying a new type of civic responsibility - social responsibility- in the objectives and methods to approach religious feasibility - Legal.

Precautionary principle" is an important principle of law that lawyers have to speak in recent decades haveAnd domestic and international laws and judicial approach has affected some countries. The need to protect the environment and human life caused wise men sought to avoid risks that may impact upon the actions of modern man is fearless. This concern is more the result of appearance of some of the areas of science, industry, medicine, food, agriculture and Everyone is amazed And its results, has charmed them. The scientists who are unbridled these changes in the environment and human life, have been apprehensive. The precautionary principle is an important controlling unsafe acts has perhaps not serious threats to life on earth. Therefore, the need for risk prevention, not confined to certain risks that entails a certain loss. It was said even the scientifically and technically it is not sure that is the result of some harmful action, According to the precautionary principle should be minimized where possible damages resulting from that action is heavy and irreparable, Appropriate measures to avoid the damage done.Thus, little by little, we see a fundamental change in the scope of civil responsibility that "responsibility preventative" replacement " responsibility compensation" is.

There is for a short time that، by virtue of the article 1 (11) of IRI Securities market Act 1384، financial derivatives market in which future contract and option contract are offered، has started to establish on a limited level. The threshold revenue in such contracts may take the form of goods or securities. From viewpoints of Iranian legal system and Islamic jurisprudence، such contracts have proven to be valid irrespective of their subject (the underlying asset) however the validity of those derivative contracts the underlying asset of which shall be the index has continued to be doubtful. While rejecting the legal opinions raised by now concerning non-validity of financial derivatives made on the index، this article seeks to explain its nullity on a different approach. The outputs of this research shall، inter alia، be: the nullity of index contracts for impossibility of its ownership، its valueless and the lack of the very idea of ‘bargain’ in such contracts. As well as، the article contains a way to validate the contracts concluded upon index.