نشریه حقوق تطبیقی (نامه مفید)
سال پنجم شماره 2 (پیاپی 10، پاییز و زمستان 1397)

In this article, the foundations of civil responsibility of service suppliers in Islamic, Iranian and French law have been investigated. The question is whether their responsibility is based on fault or strict liability or presumption of fault. We found that civil responsibility of service suppliers in France is based on fault and the conduct of a professional and skilled person lies as the criterion. However, the traditions in Imamiyah jurisprudence on the responsibility of hired person show that the presumption of the supplier’s liability has been laid down to protect consumers and the burden of proof of no liability  rests on the shoulders of suppliers. Such a solution has been provided for in Maleki religion though some contrasted solutions have also been proposed. In Hanafite and Hanbalite schools, the responsibility of common hired person is based on dissipation and in Shafi’ite, non responsibility is more acceptable. The proposed interpretation of hired person responsibility in Imamite school is more preferred since it protects the consumers more than other theories. In Iranian law, common rules of civil responsibility are applied in the field of service distribution except when there is a special rule to the contrary. Nevertheless, it is suggested that the legislator provide for both strict liability for producers of goods and a presumption of fault for service suppliers. These all should be done besides amending consumer protection act. However, the case law having regard to the jurisprudential background of hired person and the intention of the legislator to facilitate the action for damages, have presumed the fault of service suppliers.

When someone assaults another, although the primary aim of the perpetrator is causing a kind of physical or psychic harm on the victim, but in some cases, assailant also showed victim a kind of hatred, and in fact, the assault is committed with an evil motive, such as racial motives. Moreover, sometimes, perpetrator uses a weapon for committing assault. In English law, showing aforementioned motives or the use of weapon by the assailant is considered as a higher culpability, and as a result, more punishment is imposed on them, while, in Iranian law, committing assault with evil motives or by weapon is not basically considered, or has a limited scope of influence on the amount of applicable punishment. Therefore, the present paper seeks to clarify this legal gap more than ever and suggests some strategies such as general or specific aggravating factors.

Labor contract for intellectual property production is one of the most common contracts for getting investment and proficiency together. Today, investors try to sign a labor contract with employees in return for suitable consideration to finally appropriate the economic rights of produced intellectual property. In such contracts, the concept of term subordination of the employee to the employer has a particular meaning. In addition, it should be stated that in various situations, the consideration surrendered to the employee has by far less value than the benefits through which employer acquires. In this regard, under the statutes of many countries, paying fair remuneration to the employee acquired through exploitation and commercialization has become a necessary affair.

Managers as a fiduciary have obligations for preserving the entity of the company and the interests of the shareholders, but these obligations have specific conditions that cannot be ideally justified all in accordance with the general rules of representation. Therefore, it is necessary that these obligations be specified in a special legal framework which, while recognizing the boundaries of the legal relation of the manager with the company and the shareholders, prevents them (the managers) from abuse. In British Law, the fiduciary relationship has defined the limits of powers and obligations of the managers. Iranian law has not expressly accepted the mentioned theory as a general principle, but, there are some indications in Iranian Commercial Law and the Law of Exchange Market that may be used to justify this theory. In particular, we may refer to the obligations to observe loyalty, care, good faith and providing information.

The overall appearance of a product or service, in addition to creating beauty and attractiveness, can act as a source identifier to help consumers distinguishing source. In other words, most of the time, buyers recognize the origin of the products or services and choose their desired products, based on their appearance or so-called trade dress. Therefore, when the overall appearance of a product or service is designed in a way that can serve as a source identifier, it deserves to be protected. Having in mind the lack of research in this field, the present article attempts to answer questions relating to the position of trade dress in trademark laws of countries and its protection in Iran. Adopting an analytical-descriptive approach, the article concludes that despite regulations and judicial precedents of different legal systems which protect trade dress, product design or packaging will not be accepted as a trademark in Iran. Thus, this article tries to introduce trade dress and study its related rules comparatively.

Nowadays, with the increase of divorce and consequently remarriage, the legal status of step-parent becomes a core subject in family law debates, especially in western societies. By using library resources and through a comparative approach, this paper studies different ways of transferring of parental powers in general, and review the arguments for and against the legal recognition of step-parent. We then study different provisions that allow the transfer of authority and power to step-parent over the child’s person and property in French and Iranian law during the marriage of legal parent and step-parent. Finally, we provide suggestions to improve Iranian law. This paper argues for the necessity of adding provisions in Iranian law for the voluntary transfer of parental powers to step-parent which could be under the supervision of the judge and in the child’s welfare, especially in the case where step-parent is replaced, deceased, absent or non-qualified.

One of the commonalities of all legal systems in the field of contract law is the requirement of legal capacity of the parties entering into a contract. One of the criteria of this competency is related to mental ability to exercise their financial rights and responsibilities. According to an ancient rule, contracts of a range of persons including minors who suffer from lack of contractual intention have no legal effect except in rare circumstances. But nowadays with the overall increase in human beings’ rate of knowledge and the spread of human rights ideas to protect the interests of persons, the law of contract in many countries recognizes the legal validity of minors’ beneficial contracts and the voidable character of certain beneficial but risky transactions of the minors and provides for the supervision of the guardians in order to reduce the number of their void contracts. The broad agreement of Iranian and English legal systems in adopting a common basis and approach, on one hand, and their difference on other aspects, on the other hand, provide a good reason for a comparative study of their legal institutions. Building on these common and differentiated points, one may expect the Iranian legislator to provide for measures intended to prepare minors for their legal life after maturity. These measures may include provisions such as those found in English contract law for the validity of minors’ beneficial contracts.

One of the issues that have caused debates in various legal systems is the effect of transcending the scope of activities of business companies by their directors. British law in this area has undergone a marked transformation. In the past, legal acts outside the scope of the activities of the company under "Ultra vires Rule" were considered void. However, today, the rule is more flexible in practice and if the legal actions of the company’s directors with contracting third parties are beyond the scope of the activities of the company, such legal acts will be binding on the company. In Iranian law, many lawyers, by accepting and applying the "Principle of Expertise", believe that the scope of the activities of the company should be considered a form of limitation of the jurisdiction of such legal persons, and, as a result, legal actions beyond the limits of the said should be considered absolutely void and irrevocable. Considering the rules of the British legal system, as well as the Iranian trade law and its amending law, indicates the necessity of legislative reform in Iran.