نشریه پژوهش های حقوق تطبیقی
سال بیست و پنجم شماره 4 (پیاپی 114، زمستان 1400)

A breach of a contractual obligation can not only cause damage to an obligor but also cause damage to third parties. The damage resulting from breach of contractual obligations is mainly material or moral for which a contracting party can claim within the framework of contractual civil liability and a third party can claim in the realm of non-contractual civil liability. However, today there are also other types called pure economic losses have no material origin (property or body) and may cause by a third party or contracting party due to intentional or negligent breach of a contractual obligation by the obligor. In this type of loss, the liability of obligor toward obligee is less questionable but the liability of the obligor to a third party for these damages is discussed in legal regimes. In British Law, the liability of the contractor against a third party is exceptional while in Iranian law there is no general rule allowing a third party to sue contractual party for a breach of contract, however, the general duty of the contractual obligor to take care of the third party in the direction of the principle which can be invoked in the contract, and also the rules of civil liability, protect the legal rights of the injured party. It seems that despite the lack of an explicit text, its design is not far from the mind, this is what will be comparatively expressed in this article based on an inspiration of the provisions of British law.

As a confrontation tool, economic sanctions are applied by the developed states against the developing states in order to make the state under sanctions adjust to demands imposed by the states sponsoring sanctions. The sanctions produce a variety of economic, social, legal and other effects, including an effect on contractual commitments. Whereas no specific law has been devised with regard to the effect of international sanctions on contractual commitments in Iran’s legal system, the issue has been addressed in international arbitration and judicial procedures of other countries. The main question addressed in this study, is that what approach Iran’s legal system and international trade law adopt towards the effect of economic sanctions on commitments. The findings of the present study note considerable differences. To begin with, in international trade law system, the effects are examined, using three doctrines of hardship, frustration and force majeure, while no particular approach is observed in Iran’s legal system in this regard. Secondly, in international trade law system, a single approach, considering economic sanctions as a force majeure, hardship or frustrating event, is not observed. However, most procedures tend toward the frustration doctrine. In the meantime, Iran’s judicial systems for the most part seems to gravitate towards considering international sanctions as force majeure.

Due to the importance of the carriage of goods through proper route and the effects of deviation, this article tries to trace the effects of unjustified deviation from the route on the validity of shipping documents, the liability of the carrier to compensate damages and the carrier’s right to invoke the contractual and legal defenses and limitations of liability. In the English legal system, no-deviation is an implied terms, in case of its breach the cargo owner can approve or repudiate the contract of carriage. In case of repudiation, the carrier is strictly liable for compensating the damages and has no right to invoke the contractual and legal defenses and limitations of liability. In contrast, in the Iranian legal system, which is based on the Hague Rules, due to the lack of explicit legal provisions prohibiting deviation, it can be argued that in accordance with the Rotterdam Convention, if the deviation is unreasonable, the carriage contract remains valid and in addition to the obligation to compensate the damages, the carrier has the right to invoke the exceptions and limitations of liability contained in the contract, the law and the Hague rules.

One of the challenges for the international community to achieve an effective international legal regime on climate change is the conflicting interests of governmental actors in designing compliance practices. Given the disappointing experience of an authoritarian (top-down) and binding compliance system in the Kyoto Protocol, the negotiators once again faced obstacles in Paris to develop a multilateral compliance system. From a methodological point of view, this article analyzing the chronic legal challenges of the multilateral compliance system through comparing the compliance mechanisms of the UN Framework Convention and the Kyoto Protocol seeks to answer the question of what effect these challenges have had on the manner in which the Paris Agreement Compliance Mechanism is compiled. Based on the findings of this study, the Paris Agreement, in terms of "legal nature", "inclusion of contractors" and "architecture of the system of obligations", has been developed based on non-hostile, inclusive and voluntary design and in terms of compositional provisions, such as the application of the concept of transparency, has provided the relative satisfaction of the contracting parties.

The protection of ownership is rooted in the foundations of the legal system, and its foundations are completely dependent on the ruling view of the ownership theory. At the same time, in any legal system, the individuals’ ownership may be invaded due to public needs. The problem is, what are the foundations of ownership protection? With what justification and basis can such protection be violated and denied? In Iran's jurisprudence, the protection of ownership is based on jurisprudential rules such as “Domination” and “Prohibition of the Detriment” or as a fundamental right. Expropriation was also justified in two western-jurisprudential schools of thought. On the one hand, the theories of public interest and necessity, which have a jurisprudential background, were raised, and on the other hand, the theory of public interest entered the legal discourse. In English law, the protection of ownership as a fundamental right is done through the rule of law and the principle of parliamentary sovereignty and the compliance of all actions with the law, and judicial supervision is its guarantee. Expropriation is also permissible if there is public interest, but the attitude towards public interest has different interpretations due to conceptual ambiguity. Nevertheless, the authors believe that the basis of expropriation is rooted in the legitimacy of the state. Such legitimacy at a minimal level is associated with the right to life of the government, so that expropriation is one of the basic tools of the government to continue its existence and provide public service. At the same time, the maximum level of legitimacy is rooted in the legitimacy of the political system from the people's point of view. From this point of view, in Iran, the divine-popular basis of sovereignty, which is the birth of the constitution, considers the basis of expropriation to be granted to the government through the people.

An important condition for a contract to be concluded, is the agreement of the parties; but this agreement may be disrupted due to a mistake. Recognizing a contractual mistake and locating the boundaries of which is done based on two approaches: Objectivism and Subjectivism. According to the subjective approach, the parties' mentality and attitude state forms the contract, and in case of a contradiction in their mentality towards the contract, their mentality state is given precedence. But, in the Objective approach, objective criteria determine the conclusion of the contract in case of having disagreements, and the contract is concluded based upon the parties' apparent agreement. The key question addressed by the authors in this essay is that which of the aforementioned approaches is used to identify the contractual mistake and establish the parameters of its indemnification under legal systems of Iran and England? Contrary to what is generally said, Iran's legal system is Objective just like the England. In this research, which is based on the analytical-descriptive method, the authors first identify the basic similarities and differences of Iranian and English legal systems, and by examining the issues related to contractual mistake, by rejecting the purely subjective approach, they identify the state of objectivism in the two mentioned systems.