مجله حقوق خصوصی
پیاپی 40 (بهار و تابستان 1401)

The abuse of the rights in Iran - like other countries - is prohibited and unpleasant, as Principle 40 of the Constitution addresses, but several factors such as gaps in Acts and regulations, the strict formalities of Islamic banking in Interest-Free banking operations Act and related directives and instructions, an important issue called "money", weakness of official documents- In the light of judicial procedure and regulations contrary to Article 22 of the Act on Registration of Deeds and Property- and the challenge of always being accompanied by so-called "inflation" has paved the ground for the misuse of banking contracts. Different types of abuse, depending on the case, can be committed by the customer (depositor or recipient of bank facilities) or by the bank. Abuse can also be at the time of concluding a bank contract or at the implementation stage and even years after the termination of the contract. In this article, various related hypotheses are examined based on the doctrine and jurisprudence.

The conditions to consider a first instance verdict absentia are mentioned in Article 303 of the Code of Civil Procedure which states the absence in the hearing and the lack of written defense and the lack of actual notification of the notice as conditions for the sentence to be considered in absentia. The expression of article 303 of the Code of Civil Procedure shall be noted and investigated in several ways. Article 364 of the Code of Civil Procedure has also stated the conditions of the absentia verdict in the appeal stage, which are different from the absentia verdict in the first instance stage. The expression of this article also has some notable points that need to be studied and analyzed. The examination of the issue shows that adding the condition of “lack of actual notification” mentioned in Article 303 of the Code of Civil Procedure has created a change in the conditions of a verdict to be considered absentia in the first instance stage and has minimized the instances of an absentia verdict in the this stage. However, the legislator did not include this condition in Article 364 of the Code of Civil Procedure, and this has led to a significant difference between the absentia verdict in the appeal stage and the absentia verdict in the first instance stage.

Astonishing developments in technology and the rise of dangerous settings have increased and diversified examples of situations that may inflict damage on individuals. Hence it has been indispensable to develop legal institutions to counter such damages. The duty to warn is one of these institutions that has been developed and applied in modern legal systems. The duty to warn not only has preventive effects; it also can prevent manufacturers' civil liability from happening or at least it can diminish it. The duty to warn can also prevent or lower civil liability of operators of dangerous settings. Despite these pros brought about by the duty to warn, our legal system does not deal with it adequately, if not at all. This article critically examines the existing scholarship on the duty to warn. It concludes that "all circumstances of the case" is an appropriate criterion to adopt in order to establish liability.

The basis of morality is justice. Justice is also a balance between all values and goals. In the law of torts, a rule that better meets the overall objectives of the law of torts would be moral. Accordingly, in cases where strict liability can better meet the objectives of the law of torts, its application will be entirely moral. The purpose of imposing tort liability is not to punish, but to return the parties to a balanced situation that the parties had before the incident. Therefore, in the injurer's liability who upset this balance, malice and negligence are not among the necessary conditions. In some cases, either strict or negligence liability regime, liability is imposed on a person who has not committed a fault. In cases where neither party has committed a fault, the fault cannot be a factor in assigning liability. In these circumstances, what can justify the imposition of costs on one of the parties, the injurer, is the causal and attributive relationship that exists between the action and the damage.

Mediation is an appropriate dispute resolution method because of the possibility of resolving disputes peacefully and determining the outcome of the dispute by the parties.  Online mediation in e-commerce disputes, despite of the special circumstances of the parties due to the distance and impossibility of face-to-face meeting, allow individuals and business activists to resolve their disputes peacefully. In the current study, online mediation has been studied In terms of  "concept and characteristics", "advantages", "disadvantages", "process", "resolvable disputes", "enforcement of outcome" and "existing strategies for progress",  so that by clarifying the different legal aspects of this dispute resolution method, individuals can decide whether it is appropriate to use this dispute resolution method or not. Finally, the present article has reached the conclusion that due to the emergence of various technologies, in most disputes, online mediation can be exploited. At the same time, the lack of enforceability of online mediation results in most cases and the lack of guarantee for non- disclosure of confidential information in the dispute resolution process are the main problems of this method that can be solved by enacting comprehensive rules and training mediators.

Although ‌ Administration of justice in the contractual relation has been proposed as one of the functions of contemporary contract law, but from an executive point of view, it can be examined whether contract law should play a positive role or can only play the role of preventing injustice. In this article, by descriptive-analytical method, it was proved that due to Necessity of protection of will principle, contract law has a role in preventing injustice. In this regard, although several criteria such as exchange of unequal economic values, dishonest wager, inappropriate terms, undeserved return and advantage, have been proposed to detect injustice, but the criterion of lack of rational purpose or unrasoablness is more appropriate than others because it includes all the above criteria.

Despite the necessity of speed and irrevocability of arbitral awards, because of considerations of due process and public order in dispute resolution a certain limit of judicial review on arbitral awards has been recognized in national legal systems including annulment of arbitral awards on the basis of a disputing party litigation. Except for appeal from arbitral awards in French law for domestic awards which with the agreement of the parties leads to a de novo judicial review and in Iranian law is not allowed, hearing an annulment case in both legal systems is only on the basis of the grounds which have been referred to by the parties and court may annules an arbitral award accordingly. In this article, comparative study of grounds for annulment of arbitral awards in French and Iranian law reveals that in French law the grounds for annulment of arbitral awards are more limited especially in international awards and more coherent than Iranian law.

Real estate aggregation is one of registration operations which is neglected in property registration law and its regulations, meanwhile lots of owners demanded for it. Because of that the property and deeds registration office has declared a circular of conditions and method of real estate aggregation which one of its conditions is the equality of common ownership shares in all aggregated units. In this research we have investigated based on analytical descriptive  method, accorded to existed sources and practical method of registration units. We have concluded that it's possible to issue title deed for common owners of aggregated unit by adjusting formal declaration for portions of owners regardless of difference in ownership of each part of aggregated unit contrary to routine of registration units and we proved to jurisprudential rule of domination, harmless juris prudential rule, duty of notary public in confirmation of conditions, not being against the rule of formal declaration for aggregation, being of confession on the top of other proves in legal affairs and not being against the principle of aggregation.

The purpose of maintenance contract is to create an obligation to monitor the good operation of the equipment and facilities, which their continuation of the activity or the shortening of their downtime will improve economic efficiency. Although in the law of Iran, like the laws of many countries, this contract is not mentioned explicitly; but its practical benefits have persuaded industry activists to take advantage of it widely, while the nature and principles governing it are ambiguous in some cases. This article, based on comparative study and the principles of Islamic jurisprudence and Iranian law tries to examine and explain the nature of this contract. In the following, its independence or overlapping effects and provisions are evaluated by comparing with the similar institutions, and finally, the reasons justifying its use are analyzed. As a result, it is safe to say that the maintenance contract is an independent contract that is created due to the lack of appropriate attention of the traditional mechanisms of contract law to the concept of economic efficiency. This contract is the primary protection tool in law to prevent the stoppage of the equipment whose continuous use is facing the risk of shutdown.

Personal data is a piece of information about the privacy of individuals and is protected by lawmakers as a right to privacy. On the other hand, protecting users against the actions of data processing companies and the risks that may threaten the integrity and confidentiality of their personal data, requires familiarity with the characteristics of this particular type of data. The present study, using descriptive analytical method, tries to examine the text of the EU General Data Protection Regulation document as well as Iranian legal documents such as the Electronic Commerce Law of the Islamic Republic of Iran, Iranian electronic crime law and the draft bill on personal data protection, to explain the distinguishing features of personal data from other types of data in cyberspace. Finally, the findings of the present study indicate that personal data are necessarily related to the natural person and the common point which is observed in all types and instances of personal data, is the identifiability of data, thus if the identity of the data subject (and not other persons) can be accessed, either directly or indirectly, using conventional and logical data processing tools and devices, the data will be considered personal.

One of the important issues which is usually neglected in the Iranian Legal literature is the impact of wrongdoing on rights of the wrongdoer from which would other they would have benefited. In the present paper we endeavor to address the complex issues by using analytical-library method which pertains to the legal doctrine of “ex turpi causa non oritur actio” what are the cases and examples and what is its legal effect. We have sought to base the said doctrine on Islamic canons and maxims, thus justifying its application under Iranian positive law. In response to the said questions and by using and analyzing the Islamic documents we came to the conclusion that the doctrine of clean hands under certain conditions has no inconsistency with the foundations of our legal system, and there exists adequate remedies for said doctrine in order to be applied.

Although, according to Roman principle, "The Agreements Must be Kept"-which is inspiring for Dutch Civil Law- the priority of enforcing the Specific Performance over compensation and termination has been accepted,  due to silence of law about it, the Supreme Court of this country, restricts its application to 2 items subsidiarity and proportionality. This means that whenever the judicial authority is able to eliminate the impediment caused by breach of the contract by using compensatory methods such as issuing a verdict for payment of damages and termination, it can refuse to issue a verdict for specific performance and gives such a decision only when the benefits that the creditor gets in this way are proportional to the losses incurred by the debtor. In Iranian law, in spite of some texts - which indicate the need to fulfill the contract and terms and conditions, and according to some opinions, the refusal of the court to issue a verdict for specific performance, before the impossibility of its performance is impossible-, In case there is no balance between the interests of the creditor and the loss of the debtor, rules such as no-hardship and no-harm leave the court free to refrain from issuing a judgment to enforce the specific performance.