فصلنامه پژوهش حقوق خصوصی
پیاپی 12 (پاییز 1394)

The debate as to whether it is necessary to have the gardener’s permission for a virgin girl marriage has been a controversial subject for many years. This issue has led the legislator to establish three aspects considered by Article 1043 of the Iranian Civil Code. The differences relating to these three aspects raise this question: Is it principally necessary to have permission of the girl''s gardener، before or after the marriage، in order for formal marriage to be treated as true or false? If the answer is negative، what is the meaning of the first part of this Article adopted in 1991? Does the marriage of virgin girl that reached the puberty age require her gardener or her father grandfather’s permission? To this end، the necessity of not having the virgin girl’s gardener permission، no matter before or after marriage، existed in the nature of marriage. The virgin girl gardener’s permission is legally for registering the marriage. The gardener’s right to end her daughter’s marriage by terminating the marriage or divorce through her daughter’s request is an approach which is to be considered in this article by analysing it as the legislator''s view.

Rescue and salvage operations take place in many sea voyages. Numerous technical and legal problems may arise in these operations. The vessel which proceeds to do this operation normally performs another job. By this operation, the vessel breaches her job contract. The rescue ships usually incur a lot of costs and damages in order to perform rescue operation. There are always many challenges regarding costs and damages of rescuer in addition to the damages which the vessel may cause to the rescued ship. The rescue operation is a legal duty of ship masters; however, there should be a logic and legal method for compensating the damages. This job is carried out either for the purpose of an economic interest or it is done morally on the basis of beneficence. This article, first, deals with legal aspects of the rescue and salvage operations on basis of international conventions, common law, civil law and Iranian law. It then examines different methods for compensation.

In dealing with the bankruptcy regime, the legislator requires legal entities to manage this regime for specific purposes. One of these legal entities that plays a significant role is “automatic stay”. This legal entity is designed to prevent individual action of creditors. Different factors play a role in the efficiency and inefficiency of the automatic stay. The main reasons for efficiency are increasing the value of property of the bankrupt and reducing costs. The main cause of inefficiency is the redistribution of wealth. In Iranian law, a limited scope and the lack of enforcement of the automatic stay are regarded as main reasons for inefficiency of this legal entity. In the United States, the scope of automatic stay is wider than Iranian law, and this legal entity can be enforced in the former.The automatic stay is unavoidable in Iranian law, whereas there are different views in U.S. law in this regard.

The general rule of abuse of right has been used in many legal contexts, including contract law and family law. Rules and norms on private international law have been affected by this general rule. Forum shopping in conflict of forums and evasion in conflict of laws are the current issues which confront with the abuse of right. Different legal systems have, however, adopted different approaches by considering historical origins and social structures. In common law tradition, forum shopping rule has been used for declining jurisdiction, whereas civil law system is unfamiliar with this concept. On the other hand, while evasion is, historically, regarded as one of the obstacles to the enforcement of foreign law in civil law regime, public policy and mandatory rules are the only barriers in the enforcement of foreign law in common law. In Iranian law, none of these rules have been formulated and as a result, the adaptation of these concepts with general principle is difficult.

To understand the principle of freedom of contract and its moral basis as well as its source in our jurisprudence and law, we must not seek this principle in jurisprudential texts. The examination of moral principle shows that the principle is embedded in its concept. These rules are freedom of contract formation and freedom of forms. This paper just argues that the most important rule set forth in the principle of freedom of contract means freedom of forms because of the extension of subject. By exploring verses, reports, Jurisprudential and legal sources, it can be stated that the rule of freedom of forms embedded in the principle of freedom of contract is rooted in moral principles, such as general principle of loyalty to the covenant and compliance of action with intent that entered into legal system in the form of freedom of contract principle after being adjusted and reformed.

Compensation for damages arising from a breach of contractual obligations should place the injured party in the position he would have been in had the contract not been breached. By accepting the idea of full compensation, the UNIDROIT Principles of International Commercial Contracts as well as the Convention on Contracts for the International Sale of Goods (1980), judicial precedents, and international arbitration awards have recognised this approach. Despite the recognition of the principle of compensation, this theory is subject to controversy in Iranian law, particularly in the event of damages caused by the loss of anticipatory benefits. From justice and economic efficiency perspectives and for the sake of adapting Iranian commercial rules with ones reflected in international trade instruments, and for considering the affirmative religious jurisprudential principles, it is recommended that effective steps should be taken towards the removal of all existing legal barriers in Iranian law.