دانشنامه حقوق اقتصادی
سال بیست و سوم شماره 1 (پیاپی 9، بهار و تابستان 1395)

Real estate is the most important economic asset of any society whose entry into the economic cycle has a considerable impact on the development of the country. Stability of real estate rights has effect on the owner's ability on the entry of its real state to economic cycles. This stability will motivate investment in real estate section. The stability of real state rights as well as identifying of the objective rights in the real state have effects on the ability to achieve the financial markets, supply and exchange of property on the market, and affect the real estate transaction costs which have a vital role in the development of real estate transactions. Hence, markets, where real estate is exchanged, want to design a system to detect and determine real state rights; a system which allows the exchange of real state with lower transaction costs because the increase in the volume of property transaction has the inverse relationship with the "transaction cost". "Transaction costs" in the field of real estate is a matter of debate and a lot of effort has been made to explore different aspects of it in the legal systems of other countries. However, despite its importance and its impact on the development of the property market, enough attention has not been paid to this concept in the Iranian legal system. Thus, attention must be paid to the following two factors: 1. the concept of transaction cost, on the one hand 2. The inverse relationship between the volume of real estate transactions and transaction costs, on the other hand. Given these two factors, it is necessary to review the environmental and human factors of transaction costs in the field of real estate transactions in two stages, i.e., before and after the conclusion of the transaction. Additionally, it raises the need for legal solutions to remove or reduce environmental and human factors.
This paper analyzes the concept of transaction costs, particularly in the real estate market. This article examines the causes of transaction costs on the basis of economic theory in two stages, i.e., before and after the conclusion of the contract. The paper examines environmental and human factors that create these costs in both periods. In this study, the specific characteristics and differences of real estate with other assets are considered and after determining these attributes in real estate, it was concluded that the land registry system convert assets into capital. With this system, real estate transactions are impersonal. Land Registry System performs this function through the following two functions: (1) Identifying and defining property rights and guaranteeing the stability of property rights (2) The legal protection of those rights. As a result, property registration reduces transaction costs and has impact on the environment and human factors of costs. The property enters the economic cycle through this system. This research reviews both personal and objective systems of registration of the Land Registry that are used worldwide. In this study the legal functions of the registration system are emphasized and their effects on transaction costs are analyzed. This study shows that, despite some shortcomings, the use of objective registration system in combination with the cadaster in Iran provides access to the goal. In Iran, Land Registry's system is a legal entity with functions that can affect the performance of the property market and reduce "transaction costs". In addition, this system increases the volume of these transactions and their "economic efficiency". Registration system determines property rights and protects those rights against trade risks.
Land Registration System collects the information and data about real estate and their rights and makes it possible to achieve this information and data for concluding the deal on the market. This system intercepts asymmetries and distortions of information and thereby eliminates the "uncertainty" and "complexity" of transaction. It eliminates "opportunistic behavior" and cheating "parties" that increase transaction costs. In addition, Land Registry System provides legal protection of registered property rights and it cannot be violated. As a result, it controls "bounded rationality" of the parties that is another factor in increasing transaction costs through reduced claims and risk. Of course, creating a land registry system imposes the costs to the government (the cost of creating and maintaining land registration system) as well as parties (inquiry fee, tax costs, registration fees such as notary fees and costs of registration of property rights in registration system, etc.). These costs themselves are the transaction costs. However, it is desirable as long as these costs are less than the costs caused by the lack of the existence of such a system.

The main principle governing any contract is freedom of contracts. A contract may contain restraint or a limitation clause for one or both parties. Franchise is a complex and detailed contract having different limitations along with its subject matter. In the case of franchising, the tying product is till' franchise itself and the tied products are the supplies the franchisee must purchase to operate his business.
Product tying is the practice of selling one product or service as a mandatory addition to the purchase of a different product or service. In legal terms, a tying sale makes the sale of tying good to the de facto customer conditional on the purchase of a second distinctive good (the tied good). Tying is often illegal when the products are not naturally related. It is related to but distinct from freebie marketing, a common and legal method of giving away (or selling at a substantial discount) one item to ensure a continual flow of sales of another related item.
The tying doctrine has generally been applied to franchising in cases in which the franchisor's licensing of his trademark or name was conditioned on agreement by the prospective franchisee to purchase additional products from him (A New Approach, 1981, p. 1271).
Some kinds of tying, especially tying created by contract, have historically been regarded as anti-competitive practices. The basic idea is that consumers are harmed by being forced to buy an undesired good (the tied good) in order to purchase a good they actually want (the tying good), and so would prefer that the goods be sold separately. The company doing this bundling may have a significantly large market share so that it may impose the tie on consumers, despite the forces of market competition. The tie may also harm other companies in the market for the tied good, or who sell only single components. The main question that arises is as following; is it legal for franchisors to have purchase requirements or tying agreements?
In 1970, Congress enacted section 106 of the Bank Holding Company Act Amendments of 1970 (BHCA) known as the anti-tying provision, which is codified at 12 U.S.C. § 1972. The statute was designed to prevent banks, whether large or small, state or federal, from imposing anticompetitive conditions on their customers. Tying is an antitrust violation, but the Sherman and Clayton Acts did not adequately protect borrowers from being required to accept conditions to loans issued by banks, and section 106 was specifically designed to apply to and remedy such bank misconduct (Tying (commerce), https://en./wiki/Tying_(commerce) ).
In the US, both the Sherman Antitrust Act and Section 3 of the Clayton Act have considered tying sale from the view of competition. We can use this legal context for developing Iranian competition and consumer protection law.
In this paper, we are discussing one of the prevalent restraint clauses in franchise contracts. This survey is done thorugh doing a comparative study on the law of the United States and Iranian competition law. A tying sale makes the sale of one good (the tying good) to the customer conditional on the purchase of a second distinctive good (the tied good).
While the courts have usually considered such pricing arrangements as an extension of monopoly from the market for the tying good to the tied-good market, economists have generally rejected this view, preferring instead to view the tie-in from the perspective of alternative hypotheses.

Although according to the law, the board of directors determines the scope of the executive director’s (manager’s) power, but executive powers which are not granted to the manager, despite the usual ambiguous perception, are not executable by the board of directors itself. As a result, this paper proves that in the commercial law, there is an almost hidden principle called the principle of mere allocation of company’s executive organ to the manager.
Use of the word “executive” in the title “executive director”, compulsory nature of publicizing only the manager's characteristics in the national gazette, compulsory nature of having a manager and the exceptional nature of having the board of directors in companies, manager’s discretionary power in a company’s executive affairs, required natural personality of the manager and the possibility of standing as manager only for one company, as well as the unlimited nature of the managerial term prove this principle.
In external (company’s relation with persons out of it) and internal affairs manager is the sole executive agent of the company. However, a company can have more than one manager and it is possible for the board of directors to introduce other persons as the company’s special agents, or as persons compatible to make signature on behalf of the company. In addition, a company may partially grant its powers to other persons.
Only the manager’s characteristics should be publicized in the national gazette. This would have different results including that his post gets deemed principally not expired and that the company gets known by him. However, the procedure for introducing a person as a company’s executive agent is a relatively long and complex matter. However, it is not impossible for the manager to be appointed by the general assembly rather than the board of directors. In such a case, the general assembly meeting’s minute rather than that of the board of directors would be publicized.
Having at least one manager is compulsory for every company but having the board of directors is exceptionally compulsory; this is because of the difficulties concerning having board of directors in the companies. However, the Legislature avoids the collective execution of the companies’ affairs as well.
Despite managers’ discretionary power in executive affairs of the company, there are some points about the governance of the board of directors’ views over the manager’s views, manager’s scope of power, the cases in which manager’s restricted power can be relied on against the third parties, and election of the board of directors’ head as the manager.
A legal person cannot become a manager in a joint stock company. In other companies, a manager has been deemed as a “person” so it is not impossible for legal persons to become manager of other companies. However, even if the manager is a legal person, at last the managerial affairs of the company would be accomplished by a natural person. However, although the term for the board of directors’ membership cannot exceed two years, there is no maximum term for being a manager. This is because s/he is elected as an agent not for the board of directors but for the company. In fact, although principally it is the board of directors which appoints the manager, but it grants the company’s rather than its own powers to him/her. In other companies as well no maximum term has been determined for engagement as a manager.
During many decades, no paper had been written about manger which had different reasons. One of the reasons is the extremely scattered situation of related material and the other is the presence of conflict, controversy, and ambiguity among relevant regulations.
As one of its auxiliary results, this study proves that the manager in the companies other than the joint stock and the cooperative is not a director (a member of the board of directors) but an executive director (manager). Hence, in case those companies have more than one manager, those managers would not form a board of directors as it is usual in joint stock and cooperative companies. That would form a board of managers, and decisions making in which would be by unanimous consent rather than majority vote. Besides, as it happens about the joint stock companies’ manger of having negative conditions of eligibility, it seems possible to deem as correct the acts and endeavors of other companies’ managers in case they have been chosen or acted while having the legally negated conditions of eligibility.
In some cases, matters grounding this principle (principle on mere allocation of company’s executive organ to the manager) such as discretionary power’s existence for the manager in the company’s executive matters, and executive matters’ separateness from legislative ones have been proved as well. Under this principle’s light, analyzing the different parts of the important issue of possibility or impossibility of reference to the manager’s power’s restriction against the third parties has become possible and it has become clear that the manager has a place quite independent from the board of directors.

Arbitration as an alternative to state courts will succeed in fairly resolving disputes if it can remove the obstacles to hearings and guarantee the equal treatment of the parties. In litigations, judicial assistances (legal aids) such as insolvency proceedings come to the help of the impecunious party so that the economic obstacles do not lead to the violation of basic and fundamental rights such as access to justice and defense. while such assistances (legal aid) can be objectionable in arbitration, arbitrators begin looking in to the case only after receiving a fee sometimes considerable in amount. Arbitration institutions also have strict regulations in this regard. The status of the party who has to file a counterclaim, without being able to pay the relevant fee, is not clear. On the other hand, if the party cannot file the counterclaim, the arbitration award may be annulled due to the violation of a fundamental right such as access to justice.
This issue may be raised in both domestic and international arbitration and has caused some of verdicts in national courts and awards in arbitration tribunals. In some countries, based on the principle of the right of defense and equal treatment with the parties, it is attempted to find a way for defendant and hearing of counterclaim. Hence when a defendant is bankrupt or he has a verdict about his financial inability, they force the arbitral tribunal to accept the counterclaim without the costs. If the arbitration tribunal under its rules cannot judge without cost or refrain from accepting counterclaim, the arbitration award will be declared invalid by the judiciary in these countries. This way that is based on European principles of human rights and internal rules of some of countries is gradually developing. Accordingly the right of access to justice and obtain the justice require that financial inability does not cause the loss of the right to defense because judicial courts have laid down assistances (legal aid) for insolvent persons. In arbitral tribunals, arbiter should hear the dispute of insolvent persons by distribution of the costs or refrain from awards and guide the plaintiff that he may go to court, rather than arbitration. Some of writers have stipulated the insurance of arbitration costs but it does not any field for enforcement. In a further analysis of this debate, some believe that the concept of non-enforceability of arbitration agreement may include insolvency of one of the parties not to be able to pose its lawsuit in the arbitral tribunal. This concept that is mentioned in many arbitration laws and regulations, whether national or international means that where there is no possibility to arbitrating, the contract is non-performance. In the assumption that the defendant after the litigation of counterclaim is not able to afford costs, the arbitration agreement actually is non-performance and so the court can void an arbitral award that has been issued regardless of the defense of insolvent person.
In Iranian law, this problem could benefit from similar approaches because the principal of subrogation for arbitration rather than the courts, including means in the case of posing of dispute in the arbitral tribunal, the parties rights of defense and equal treatment will be respected. Hence if a defendant expresses the defense about offset or extinction of debt that is costly under the arbitration rules (the institutional arbitration) or statement of arbiter, the arbitration agreement should be unenforced or the arbiter will require issuing an award with no charge or void the award that has been issued without defense. In this debate it appears unenforceability is logical. From the perspective of Islamic jurisprudence, legal fees should not be led to not hearing the dispute and the violation of justice and it is clear that issuing the verdict regardless of the counterclaim cannot provide the justice.
When the defendant cannot pay the arbitration cost for counterclaim, the plaintiff can oblige the cost or the arbitration agreement is unenforced with the final decision of the court about the insolvency or bankruptcy of defendant or his insolvency case. In this case, in order to provide the principles of equal treatment, the access to justice and the right of defense, the arbiter has to announce termination of the arbitration process and guide the plaintiff for referring to the court. In this article, the aforementioned problem is evaluated with regard to the European case law and the solution in the Iranian law and the analysis based on which the court has the capacity to hear the case will be defended. This analysis is based on the fact that although the arbitration regulations do not stipulate, it is necessary for the legal general principles such as the right to defense.

One of the most important factors that encourages consumers to purchase goods or use services, and make them choose one of them among various goods and services, is the design of products and services or their packaging. Due to this importance, intellectual property rights protect the design of goods and services or their packaging. However, this protection is not limited to one branch of intellectual property rights and it is possible that various aspects of intellectual property rights protect the design and packaging under some conditions. In this regard, the question that arises here is what are the differences between the protection in various forms of intellectual property rights and that which protection is more appropriate? And finally, is multiple protection possible?
Theoretical Framework: The present article attempts to examine the aforementioned issue in two parts. In the first part, protection of design or packaging through various aspects of intellectual property rights will be studied and compared with each other. Then, in the second part, the protection of designs and packaging through multiple legal frameworks is evaluated and scrutinized.
This study attempts to find an answer to questions above by using an analytical-descriptive approach. To this aim, this study seeks to draw a comparison between the various branches of intellectual property rights by using desk research through making use of articles, books, and conducted studies. In some cases, this study benefits from practical examples and judicial decisions in different countries. In addition, in order to investigate more about Iranian legal system, a field research was conducted and then discussed with relevant experts.
The results show that various branches of intellectual property rights for protection of design of goods and services or their packaging differ from each other in many ways, including conditions, term, and registration requisiteness. The following table can show the comparison between the different branches in summary.
Drawbacks Benefits Term Type
- Must be distinctive.
- Must be nonfunctional.
- Must be registered (in most legal systems).
- No need to originality.
- No need to novelty.
- The longest period of protection. As long as use is continued (subject to extension) Trade mark
Trade dress))
- Must be novel.
- Must be original (in some legal systems).
- Must be nonfunctional.
- Must be registered.
- The shortest period of protection.
- No need to distinction.
- Protection through this branch can help to acquire distinction and cause trade dress protection in future.
10 – 25 years
Industrial designs
- Must be original.
- Possibility of creating similar works by others. - No need to distinction.
- No need to novelty.
- No need to registration (in most legal systems).
Life of author 50 years after his death Copyright
- Not grant of exclusive rights to the owner.
- Proof of civil liability's elements in a lawsuit. - No need to the conditions of intellectual property rights (distinction, novelty, originality)
- No need to registration.
- Protection of consumers and public along with the right holder.
Unlimited Unfair competition
The results of this study show that a decisive response about the most appropriate branch of intellectual property rights in relation to protection of design of goods and services or their packaging cannot be given, because each aspects of intellectual property rights has several advantages and disadvantages and ultimately, the designer can determine which branch is more suitable to protect his design or packaging. On the other hand, it should be noted that different legal systems accept multiple protection of a design or packaging, as each legal framework is independent of other formats regarding purpose, function, and conditions.

Payment system is any organized arrangement for transferring monetary value leading to discharge and settlement of obligation. Negotiable instruments in their special meaning are tradable documents that can be used as means of payment in commercial and consuming trades and are considered as non-cash payment system among the monetary transferring systems. The negotiable instruments hold some characteristics and principles whose concept and effects are reflected in some domestic rules, international conventions, doctrine, and judicial procedures. The significant characteristics of these instruments is in subject, formative description, negotiability and solidary obligations of signatories. The principle of independency of signatures, independency of “obligation cambiaire” from underlying obligation, non-attributing objections and defenses related to the previous relations as well as the principle of surviving the main legal relationship are among the most important principles governing negotiable instruments. The subject of this research is the economic analysis of negotiable instruments and analyzing features and principles governing them as a non-cash system of payment.
Theoretical Framework: If the parties to the payment, payment instrument, institutional arrangements, protocols and discharge are the main elements or bases of realization of one payment system, the negotiable instruments having these elements are payment systems. Among the characteristics of this payment system is that the negotiable instrument is in itself an instrument of payment and the means for transferring monetary value from the payer to the final holder of the instrument.
Discharge of obligation and settlement is a procedure that is the final goal and objective of any payment system and its essential element and the degree of efficiency depends on realizing such a function. When it is supposed that negotiable instruments are used as payment system, as long as the sum of the instrument is not paid, the process of payment is not realized. Hence, the practical and legal features of these instruments and the rules and principles governing them have to be in a way to facilitate the process of payment and remove the possibility of raising legal objections and creating legal obstacles on behalf of the parties that are liable of paying the sum of the instrument. Therefore, the efficiency of this system of payment depends on the degree of certainty of payment, its punctuality, and decrease of risk of not being dishonored.
In this study, in addition to using descriptive and analytical methods, explanatory and inferring methods are also used to discover a logical relationship between features and attributes of negotiable instruments and their function as payment system, and to reveal clear causes of the existence of principles ruling them.
The subject of negotiable instrument is the unconditional obligation to pay or unconditional order to pay, and as a principle, all persons who sign the negotiable instrument are committed toward the holder of the negotiable instrument and those after themselves. This obligation is called “obligation cambiaire” in French legal literature and resulted from signing commercial paper. The philosophy of this principle is to increase the efficiency of this system of non-cash payment and decrease the risk of dishonor of the drawee.
Predicting the obligation cambiaire of the signatories of commercial paper and their solidary obligations for support of the holder of the instrument, unlike money, lacks the support of the government and governing authorities. To compensate this deficiency and to attain people’s trust to these papers, the legislator proposes solidary obligations of these signatories as an appropriate solution by relying on which the creditor assures, and in case of dishonor at maturity, the instrument will be paid by recourse to all or some of the signers. Undoubtedly, the object of this important character is that the negotiable instruments can be negotiated as an effective instrument of payment and can be used as a system of payment for transfer of monetary value and discharge and settlement of transactions.
The necessity of observing formative conditions in concluding, issuing, and transferring a negotiable instrument is hidden in its function as an instrument of payment. Existence of special formative conditions plays an effective role in regulating the relationships of parties of the negotiable instrument and increasing the probative value of it. The negotiability of commercial papers is the logical necessity of their economic function as the instrument or means of payment. The instrument of payment that has capability of negotiation in the interval between issuing to due date and can repeatedly be used as an instrument of payment in different transactions. Moreover, this character can help financing of firms.
The goal of enacting of principles and rules governing negotiable instruments is forming a special legal regime that secures the economic function of them as an instrument of payment and eventually as a non-cash payment system. As security and trust are among the most important and necessary bases and elements of payment system, the final goal of these rules is to reinforce the creditability of negotiable instruments by reducing the risk of non-payment and eventually increasing people’s reliance on negotiable instruments and accepting them in trades as an instrument of payment. An efficient system of payment is one whose instrument of payment finally leads to delivery or transferring the monetary value to the creditor or holder of instrument, and due to the legal relations before issuing or endorsing the instrument, the rights of final holder and creditor is not endangered.
Conclusions and Suggestions: The conclusion of this research shows that proper interpretation of features of negotiable instruments and comprehensive and accurate analysis of principles that govern them and their effects on relations between parties and relationship between obligation arising from negotiable instrument and underlying contractual obligations is merely possible by considering main function of negotiable instrument as a payment system. In other words, legal analysis of negotiable instrument depends on the analysis of its economic function. Because, in the normal course and without these features and principles, these instruments are in themselves connecting the underling contract and each party can recourse to contractual defenses and set-off. So, the realization of this economic function requires characteristics and governing principles that ensure and protect such functions.
Thus, the legislator is recommended to correct the deficiencies and ambiguities of current regulations of negotiable instruments based on the latest developments of law of negotiable instruments while considering its economic function as a payment system in a way that results in increasing the efficiency of this system, decreasing the risk of dishonor and other risks of non-payment of negotiable instruments, and decreasing the figures of dishonored checks.