نشریه قضاوت
پیاپی 85 (بهار 1395)

The principles of speed, ease and security are among the principles in the area of business. Merchants always make attempts to provide means to pair these principles. One of these means is standard forms of contract. By using these forms, parties to the transaction don’t pay attention to the details. They agree on the basic issues and fundamentals of the contract including price and sales and basic qualities and characteristics, expressed in other terms considered to these forms. Besides the significant benefits of using these forms, the forms, the issue arised is the conflict among provisions in the forms. Contracting parties in drafting their forms usually focus on the needs and interests of their survey and naturally incorporate provisions that will maximize their profits in forms. It will be usual and predictable that this isshe result in conflict between standard terms of contract so the merchant get involved to questions. The first one is that, if a contract is concluded, which terms governs the contract, and what is the contract content? The porpuse of this article is to answer the questions mentioned aboved in Iranian legal system and fiqh (Islamic Law). By consulting the articles and books, one may find that domestic and international legal systems attempt to provide a solution to this issue according to the needs of merchants. The main ones are first resort, last resort and waving rules. Because of the novelty of issue in Iran, the debate has not been done in a proper way. It seems in order to serve the purpose of this article we must examine general rules of contracts after the examination of imamieh fiqh as the base of Iranian law.

Goods obtainer is one who obtains the goods or samples at the time of conclusion of contract from the other party for examiningand testing. After that if he/she is happy with the result, he/she may decide to buy it. When he obtains the goods, if any defect or damage may be done to the goods, is he/she legally liable? Is it right to presume him/ her as a trustee? Or is it better to regard him absolutely liable? This paper intends to explain the terms and elements of the term “goods obtainer”. Then it will review the arguments of the famous Shiite jurists and Iranian lawyers. While reviewing these arguments, the paper deals with the question whether “goods obtainer” is an independent cause for liability? Does Iranian Civil Code deals with this term? At the end, it will be discussed whether the goods obtainer is a rule of Fiqh?

The legislature, for the purpose of commercial documents and their increased use by individuals, has provided different privileges. Some of these privileges is applicable commonly to the bills of exchange, promissory notes and cheques. However, the other part has been assigned only to this commercial document as the special privileges of checks. There are some special privileges for cheque. It is necessary to mention that cheque contributes to commercial transactions as a substitute for promissory note. The bill of exchange has been removed from the internal commercial arena. This paper intends to scrutinize the contexts for substituting the cheque in place of the other commercial documents by investigating the common privileges of commercial documents in addition to the special privileges of cheque.

According to the relevant articles of Iranian Civil Code and legal basis of contracts in Iraniann legal system, the term “obligation” in article 183 of Iranian Civil Code means “binding agreement”. Thus if one limit the meaning of obligation to certain catigories of contracts, there will be many problems in practice. Reviewing and study of Islamic law and consideration of opinions of Islamic lawyers on the term “obligation” and equvilant terms such as duty, burden and liability shows that this term is derived from Roman law. However in Islamic law it has been considered as binding agreement of the parties. Studying and consideration of laws of European contries and other legal systems and concerned conventions in international arena shows that the agreed point is that the agreement between the parties are binding. Thus when the parties enter into a contract they bound themselves to their agreements. The conflict of opinions in Iranian traditional legal system on the contracts with law of obligations in Roman traditional legal system resulted in basic problems for legal system of contracts.

The practice of public notary offices is that while writing document of contracts advocacy, a letter of confess is written regarding conclusion of an irrevocable and disclaimer of right to terminate advocacy. There will be no details of this contract for the third parties. It is a well established and common practice. However, when the cancellation of such clause is claimed, the first court while investigating the common custom, may establish the non conclusion of an irrevocable. At the end it may rule the invalidity of such caluse. This rulling may be confirmed by the appeal court. The courts consider such clause as one wich is not descriptive. For this reason they accept the cancellation of such clause. However this clause is of descriptive character. So the best way is to establish that such clause is not true. In this article, according to the decision of the court, the validity of this condition is discussed. It seams thatin accordance withthe principle offreedom of contract, the legal system should follow thereal intent of the parties to the contract.

There are different standpoints about method of calculation of delayed payment penalty of checque. This is because of governing and applying different laws in this field. According to article 2 of checque insurance Act, date of checque is the beginning of calculation but article 522 of Civil Procedure Act provides for that for calculation of this loss, date of demanding is of significance. Regarding this conflict, some courts decide that date of payment (mentioned in checque insurance Act) is the very usual. Some courts belive that the date of notice of non- payment is relevant. In some judicial decisions, the date of bringing an action is the criterion. In relation to the statute of limitation about checques, another precedent governs.

Alimony in law terminology is the requirements and financial supports which a person needs for life. In certain cases, law provides for the responsibility of providing the alimony of some people including the wife and family members on others, and clearly distinguishes between them. The concept of the proof and burden of proof are important aspects of each assertion. Regarding the burden of proof of desertion in the permanent marriage contract, if the condescension is considered as the clause of alimony necessity, proof of condescension is due to the wife's entitlement to the alimony, but if the necessity of alimony is considered in the moment of contracting, then the husband should prove the wife's absence of right and her disobeying. Nevertheless, one who claims that deserves allowance of family members or alimony in marriage contract must prove her entitlement. Whether or not the conditions of alimony payment are stated in contract, wife should evidence her claim. Also, as the obligation in allowance of family members is an exception and against principles, the burden of proof is her responsibility.