مجله نامه مفید
پیاپی 43 (امرداد و شهریور 1383)

The arbitration agreement should be considered as a collateral contract which is inserted in the main contract (sale, carriage of goods, insurance, etc).Therefore, the question raised is whether the invalidity of the main contract could have any legal effect on the arbitration agreement. In case the response would be positive, we should admit that we are, here, facing a vicious circle, for, the arbitrator who makes a decision declaring the main contract invalid, declares in fact that he has no competence to decide as an arbitrator due to the fact that the invalidity of the main contract means that the arbitration clause was invalid as well.For the purposes of preventing such a dilemma most legal systems have opted for the theory of severability of the arbitration agreement and, therefore, do not consider that in case of the invalidity of the main contract the arbitration agreement should be considered invalid as well.The theory of severability has been admitted by the Iranian Law on International Commercial Arbitration, but rejected by the Code of Civil Procedure.The object of this article is to study the issue in question in comparative law as well as to analyze and evaluate the so called dualistic solution adopted by the Iranian legislation.

According to both Shari’a and Law, husband and wife have common responsibilities to each other; but women, especially in Islamic and Iranian societies, do all or most of their activities in the husband’s house. This raises no problem in as much as the familial life continues. Once the issue of divorce comes to the scene, this no longer is true. Under the financial regime governing the spouses in our legal system, all revenues obtained by each spouse during marriage belong to him or her. Since the wife has spent all her life doing housework, she often has no revenue and faces serious challenge. This caused the Expediency Council to adopt in 1992 a law concerning wife’s remuneration (ojrat ul mesl) and a grant by husband (nihla). The present article examines the fiqhi grounds of these two legal institutions and offers a legal analysis. It concludes with a brief account of the social implications of this legal development.

Among different viewpoints in Islamic Jurisprudence, the Iranian Legislature usually has a tendency to adopt the well-known opinion approach where it deals with revenge (Ghesas) and blood money (Dieh), in the 1991 Islamic Penal Code. Making an analysis of the issue, this paper is of the view that in approaching the various legal stands, the law maker must go beyond the matter whether an opinion is well-known among the Islamic jurists or not. The criminal law maker must take into consideration the two following points: First, which of the approaches best satisfies the expediencies of the society and second, which of the views is in harmony with other parts of the legal system.

Civil liability resulting from harm to intellectual property depends on three important factors: theoretical foundation of intellectual property, the nature of intellectual property and Islamic legal bases of civil liability.This essay discusses labour, personality, reward and utility theories as foundation of intellectual property. Then the nature of intellectual property is discussed under the title of ownership-property and usufruct. Finally, Islamic legal bases such as the principle of prevention of deliberate destruction of other’s property(Qaedeh talaf) and the principle of no harm (Qaedeh la zarar) are discussed.

The independent guarantee and suretyship (accessory guarantee) share a significant characteristic in that they both provide security to the beneficiary in respect of non-performance by account party in the underlying transaction. The difference is that the payment obligation of guarantor is by definition independent of that of account party/principal debtor, whereas the payment obligation of surety is co-extensive. In accordance with the principle of co-extensiveness, the surety is entitled to invoke the defenses which the principal debtor might have as against the beneficiary, whereas pursuant to the principle of independence, the guarantor cannot invoke defenses derived from the underlying transaction.Therefore, in the light of the principle of independence, bank guarantee is distinguished from accessory sureties and must be regarded as an unspecified contract between bank and beneficiary. The principal is not a party to this contract even if the independence guarantee is a product of the underlying contract between him and the beneficiary. In Iranian law, this contract is based on Article 10 of the Civil Code.

Terrorism is not a new phenomenon; history is replete with heinous terrorist acts perpetrated out of various motives which have taken the lives of countless innocent persons and endangered the security of the people. Now the threat has turned from national to international and there is the fear that its expansion will peril international peace and security.The author looks at reasons of terrorist acts, considers possible responses to them and after pointing out to three military, political and legal paradigms, concludes that the legal approach and its implementation within states as well as in international arena commands more attention, while negotiation diplomacy must be pursued when necessary. The article proposes that violence should not be expected to eradicate terrorism and when there is no way other than military and a war is waged under the supervision of international bodies, humanitarian laws and regulations are binding; thus in prosecuting those accused of terrorist crimes in national or international tribunals, the rights of the accused and the rules of fair trial must be observed.

According to Article 380 of Iranian Civil Code: "In the case of the bankruptcy of the buyer, if he has retained in his possession the actual object of the sale, the seller can reclaim it and he can keep the object sold provided it has not yet been handed over." This right of the seller is known as "option of taflis" in Islamic law. It can be found in Iranian Commercial Code too. In this article we study the definition, conditions, enforcement, etc. of this option in bankruptcy law.