مجله حقوق خصوصی
پیاپی 39 (پاییز و زمستان 1400)

In most juridical books and under “usurpation”, “retaliation” and “blood-money” chapters, jurisprudents have spoken of the two institution of “perpetration” and “causation” and enacted some rules, for example if both cause and the actual perpetrator exist, the actual perpetrator is responsible unless in cases in which cause is stronger. The two have been reflected in laws as well. Regarding perpetration, causation, and types of perpetration and etc., many discussions have been made in juridical and legal books. Some scholars such as Muhaqqiq Najafi (author of Jawahir al-Kalam) and Muhaqqiq Maraghi (author of ‘Anawin), however, are of the opinion that, since the terms “cause” and “the actual perpetrator” have not been used in hadiths and there is controversy between jurisprudents about definitions and instances of the two terms, discussion about causation and perpetration is a superfluous and verbal one and what is of importance is attributing damage or crime to someone, whether he is the actual perpetrator or cause. The present article studies and evaluates the scientific and practical differences which may be between the two institutions. Evidently, if it is proved that there are such differences then establishment of these two institutions and discussing about them are required. Otherwise, one has to accept the opinion of the author of Jawahir al-Kalam and the author of ‘Anawin according to whom discussing about the two is a superfluous one.

The key element in identifying infringements of literary and artistic works is to examine the extent of similarities between the works in question. But in the case of factual works that consist mainly of unprotected facts, the courts dealing with infringement cases of such works suggest that, given that the ways in which a factual idea can be expressed are limited, any subsequent expression of that idea may seem substantially similar to the words used by the first author to express the idea. In such cases, a special doctrine enters the analysis - the merger of idea with expression. According to this doctrine, expression can not be protected when the idea can only be expressed in a certain way. The doctrine has a special connection to factual works; because there are limited ways to express facts that are not per se protected. This raises the fundamental question that considering this particular nature and the prominent role of merger doctrine in excluding similarities, in what circumstances does the infringement of factual works take place? Due to the unclear status of Iranian law in this regard, the present study seeks to answer this question by using a descriptive-analytical method in examining the performance of judges in infringement cases of various instances of factual works and concludes that these works accept a different standard for infringement, as only a very close similarity, verging on the identical will constitute an infringement.

Due to policies and laws changes and territorial legal protections expansion, researchers have encountered obstacles to collaborate with other researchers in other countries including regarding stakeholders’ satisfactions and the vague legal status. In the research, an attempt was made to analyze the required measures for removal of international scientific collaborations obstacles. The most important solution in this area so far were combining advanced technical tools such as smart contracts with the principles of property to reduce transaction costs which can be a good guidance practices to cooperation as much as possible between law, traditional solutions and technology to reduce transaction cost.

The trend of pollutant industries as a new and voluntary regulatory tool has increased due to ineffectiveness governmental regulations and their weaknesses in improving the environment. The oil and gas industry is no exception. the aim of this study is to explain the environmental issues of petroleum companies as one of the most environmental and environmental issues that companies are fully independent or they attempt in cooperation with the government to regulate their activities from the environmental point of view. In addition, the measures taken by international and international law, government and other stakeholders in the support and leadership of the companies will be mentioned. The research findings indicate that petroleum companies will be able to improve the environment and oil industry subject to acceptance of responsibility and the use of self-regulatory instruments as well as an observer such as the industrial community that meets the company's activities in accordance with the set-out rules.

In Iran law, civil liability and compensation for damages caused by psychological injuries have received less attention due to their intangibility. But, in English law, damages resulting from psychological injuries to primary and secondary victims are deemed to be claimable under certain conditions. In this article, in an analytical method and in comparison, with English law, we seek to find the answer to the question of what criteria for damages caused by mental injuries can be claimed. In English law with stress on an objective criterion, on primary victims, places more emphasis on "the existence of a rational relationship between psychological damage and the risk created" and in some cases "the predictability of the risk" and the existence of a "reasonable fear in the claimant" is also considered a condition. Criteria for "predictability", "intimacy", "proximity" and "suddenness" have also been suggested for secondary victims. In Iran jurisprudence and law, the main criterion for determining compensable damage is the mixed criterion means "the ability to predict the loss according to the specific situation of the injured party", which also emphasizes the "seriousness and continuity of the loss" and "the existence of a strong emotional relationship".

Ex parte communication is any oral or written or any kind of communication with arbitrators in absence of the opposite party, which occurs unilaterally. In this process one of the dispute party engages hidden communication with arbitrator (Ex-parte communication) and negotiates with arbitrator about dispute, documents, evidences, details and any other related issue to the current case. In some cases instead of direct communication, the party attempts to use different means in order to impress arbitrator and therefore attracts his intention and bias to himself. Ex-parte communication is clearly against arbitrator's independence and impartiality. the arbitrator which engages ex parte communication in clearly unreliable and untrustworthy and therefore the arbitration process and its verdict will become doubtable. But there are some differences in lawyers opinions about the exact meaning of ex parte communication and its content. This article is trying to consider ex parte communication, the exact meaning of that and its content, its organs and at the end considering its effect on arbitration and the arbitral verdict.

Arbitration is one of the methods of resolving disputes supported by legislators; however, in some cases it is subject to certain conditions in order to protect the exclusive jurisdiction of national courts in certain matters. Undoubtedly, the most important clause is arbitrability, which is known as the cornerstone of arbitration; ignoring it may affect the arbitration process at any stage. One of the disputes arising from the issue of arbitration is the internal disputes of commercial companies. The complexity of the relationship between the elements of the company and the existence of multiple stakeholders, in some cases, is such that the arbitrability of the disputes arises with ambiguity. However, despite the importance of arbitration of internal disputes of commercial companies, in the Iranian legal system, its legal status is not very clear; however, in many countries, there are specific rules in this area. Therefore, the present article comparatively examines the arbitrability of companies’ internal disputes and its findings show that, unlike some countries where the jurisprudence has identified the arbitrability of companies’ internal disputes and explained its obstacles, in the Iranian legal system, the legislator only requires referrals to arbitration for co-operatives and does not have explicit rules for other companies.

One of the fundamental questions related to the analysis of intellectual property contract law is the status of the unauthorized license agreement. If the licensor granting the exploitation right to the licensee is not the owner of the intellectual property rights, what is the legal status of this contract? To answer to the question, there are three doctrines. Some of them recognize the non-nullity of the license agreement because, in case of an unauthorized contract, the nullity could maintain the owner's exclusive rights. Another group, according to the general rules of contracts, supports the invalidity of the contract. However, some doctrines recognize the validity of a contract. Their arguments are based on innovation and creativity in intellectual property, conflicting with the principles of patents, and protecting the owner who has the good faith with an emphasis on economic analysis. Thus, they conclude that the unauthorized license contract is concluded correctly. Therefore, the owner could not nullify the contract. The present article criticizes the situation of nullity and invalidity. It analyses and criticizes the invalidity and nullity and concludes that the situation of invalidity is more in line with the legal rules of the domestic system.

Land Registration as a system of consolidation of land ownership is always subject to errors that, if they lead to incorrect registration in the real estate registry, constitute Systemic Errors and can harm third parties. In England Land Registration act 2002 and its subsequent amendments, a special legal regime has been recognized to compensate for systematic errors; However, in Iranian law, even the liability itself is questionable. Based on this, the question arises as to what is the basis of the government's responsibility to compensate for the damages caused by systemic errors in land registration? And what is the legal regime governing this civil liability in the land registration system of England and Iran? This study with a descriptive-analytical approach has concluded that government responsibility in this area is based on the theory of guarantee in Tort Law. Also, in English law, the principle is to prevent the invalidity of the registered ownership, even if it is wrong and the injured parties of the mistake have the right to claim land price. While a review of Iranian law shows that the registered owner is not well supported in practice and the injured party of a systemic error can sue him directly.

Chefs attempt to present different foods with a variety of recipes and ingredients to their audience using all types of media. Creativity, in this sector, is to the extent that nowadays people talk about the cooking art. This has led the issue of protecting culinary creations including recipes and food plating through literary and artistic rights, to arise. In the U.S, the actions already brought to protect recipes and food presentations have failed, although courts have not, as a general rule, refused the possibility of these creations to be copyrighted. The results of this descriptive-analytical article show that recipes going beyond mere listing of a food ingredients and its preparation method which indicate the person’s art, taste and talent are protectable provided that they are fixed in a tangible medium in the American law and expressed in Iranian law. However, since ideas are not protectable, third parties may not be prevented from cooking the food explained in recipes. The form of food and way of its presentation, where the above said conditions are met, would be protected too. Indeed, the requirement to be fixed in a stable tangible medium makes it difficult to protect some food presentations in U.S law.

Epidemic diseases have always been one of the major threats to human health; a recent example of this type of disease is Covid-19. This disease has created many problems in various fields, especially in the economic field; Contracts, as an essential tool of economic prosperity, were no exception to the impact of this ominous event. The widespread of the Covid-19 has led governments to adopt rules and regulations in various fields. These rules, which prevent the spread of the disease, cause the implementation of contractual obligations with long delays, the impossibility of fulfilling obligations that have been limited in time, and the cancellation of the purpose in some contracts or complex implementation. Such problems have caused much controversy. On the other hand, in every legal system, there are provisions in such incidents to the aid of judges, lawyers, and business people and to prevent or resolve disputes. This research attempts to review these legal solutions based on the contract principles, especially the principle of favor contracts.

The rule of law is effective in the production of wealth and social welfare, so that any rule of law that causes a waste of resources must be reviewed. One of the functions of legal economic analysis is to evaluate the effectiveness of legal rules and determine the most efficient ones. In other words, the economic analysis of law is the application of theories of economics, especially "efficiency" as the basis of legal rules in order to evaluate these rules and, if necessary, correct them. In line with this, law and economics use economic rules, especially microeconomics, and determine the guarantee of optimal implementation in terms of the theory of "price of breach of obligation". Economic analysis of law also seeks to achieve the most valuable legal rule, the value that is referred to in the economic literature as the theory of "social cost". In the present research process, which uses a descriptive-analytical method, it is concluded that the right of lien has not only failed to achieve its goals legally, but also economically, has caused a waste of resources, increased transaction costs and increased lawsuits. It goes so far as to sometimes lead to the termination of the contract or its goals.

Economic analysis of contract law is one of the most extensive interdisciplinary studies between Law and Economics. Theorists of this area analyze the regulations ruling contract law with the help of instructions in economics. Contract theory, as one of the theories in Law and Economics, is rooted in the teachings of “Information Economics”. In fact, imperfect and asymmetric information of the parties of a contract has always been considered as an obstacle to the legal and voluntary exchanges of economic agents in the market. Since in the economic approach, the exchange is an increase in efficiency and social surplus, applying the solutions presented in “Information Economics” can remove these information barriers that stand in the way of the parties of a contract. In this regard, this study has attempted using Microeconomics teachings especially Game Theory and Principal-Agent model to investigate contract parties’ behavior facing information imperfection. Given the application of economic analysis of information in the field of contract law, it seems that the use of Information Economics’ findings by influencing the motivation of the parties to a contract, leads them to reach a common solution to reduce existing information imperfection.

The use of the identities of celebrities in video games has increased the attraction of the game and has a great impact on attracting audiences. That is why gaming companies are so keen using them in games. Assuming that permission to use celebrities in the game has not already been obtained, the legal systems in question have no doubt about the need to protect the celebrity. However, there are different ways to protect the rights of celebrities. In the United States, the institution of the right of publicity, in Britain, the institution of the Passing-off and in France and Germany the right of personality is used. Naturally, the conditions and effects of each of these institutions are different, which is discussed in this article. In the Iranian legal system, in the legislative system, there is no special text dedicated to this issue. However, it seems that if the use of another reputation causes damage to his personality, compensation can be claimed by invoking the institution of personality rights. Also, in case the use of another reputation has increased the sales of the game, the game company will be obliged to compensate the celebrity for the amount of profit earned from this place.