نشریه دانش حقوق مدنی
سال یازدهم شماره 2 (پیاپی 22، پاییز و زمستان 1401)

The fact that, nowadays, private law evolutions have contributed to reciprocal impact of contracts is a inevitable issue and even in law- based terms, it pinpoints the question of why and how such an interaction? which is in conflict with law-based principles should be ever mentioned? In this regard, in local law the key challenge is that, in some cases, the formation and co-existence of contracts have created the development of the compound of same-weight contracts phenomenon of a contract regardless of private law, and this has led to the ignorance of common rules. However, this condition is unavoidable in several contracts in the fields of foreign transaction Oil and petroleum contractors, competition and international refereeing. On this account, the main obsession of this article is to prove the difficulty of accepting contractual groups in Iran, s law due to conceptual ambiguity, its contradiction with defined contracts organization, disability in the application of law principles and the inefficiency of legal justifications. The results of this text are related to the necessity of vivid differentiation between application of contractual group in local law and the international one.

This article has introduced the public domain, the intellectual works which are not in protection of intellectual property. In other word,  by analyzing this concept has tried to clarify its position and importance. Public domain attempts to cause balance among the rights of authors, society and third parties. Although the public domain has a long history in intellectual property law, but unfortunately little attention has been theorists and decision-makers in this very important field. While the public domain can play an important role in the free flow of information, increase public information, the achievement of a democratic society, creating an atmosphere for the development of creativity, broad access to cultural heritage, development of public health and safety. The analysis of this concept reviewed in three section. First, the literal and technical review is considered. After that, has compared the public domain with other similar concepts of public property, state property, Anfal (an islamic concept), permissible and common heritage of mankind. Eventually, next section has introduced the most important examples of public domain in different legal systems, while expressing its uncountable.

How to administer contracts concluded in foreign trade, especially in relation to determining the appropriate law for managing disputes, has always been one of the challenging issues of contract law, which has been the subject of many discussions among jurists for decades. Examining the international commercial arbitration procedure shows that there are two important options for managing such contracts, which are the application of conflict resolution rules, which often lead to the application of a specific national law, and the other option is Lex Mercatoria, or transnational commercial law, which the main feature of its principles and rules is that it does not belong to a specific legal system, and in other words, its constituent principles and rules are extraterritorial. In this research, while analyzing the problems related to the application of conflict resolution rules in contracts concluded in international trade, we will show how to solve these problems through the application of Lex Mercatoria. The discussions raised in this article show that due to the many problems related to the application of national conflict resolution law, Lex Mercatoria can be a more efficient option for managing contracts concluded in foreign trade.

Wife's inheritance, like the concept of inheritance in Imamiyyah jurisprudence and consequently the civil law of Iran, has special characteristics. The quantity of said inheritance is based on the verses of the Crimea, but its quality is based on the authentic traditions of the Imams (a.s.). All Islamic sects have the same sayings regarding the quantity of the wife's inheritance, but they differ in the quality, and this difference is caused by the followers of the Imamiyyah religion referring to the traditions of the infallible imams (pbuh). Among the jurists of the Imamiyyah religion, there are many opinions. According to their famous words, there are some difficulties in the examples of wife's share, which have been cited after the formation of Iran's legal system. In 1387, by amending Article 946 of the Civil Code, the Iranian legislator created a tremendous change in the quality of the wife's inheritance, which faced serious opposition from contemporary jurists. The importance of following the principles used in the above-mentioned development will be necessary to spread its basis in other legal and legal cases. The analysis of the emerging principles of contemporary jurists will lead to additional success in explaining the evolution of the wife's inheritance in the civil law of Iran. There are two ideas. One is the idea of ​​social understanding of texts, and the other is the theory of the impact of the requirements of time and place, which ultimately makes the latter theory more effective in this explanation.

According to several laws, including Article 47 of the Constitution of the Islamic Republic of Iran, as well as Articles 30 and 31 of the Civil Code, the property of individuals is respected, and in Article 22 of the Constitution, the legitimate property of individuals is under the comprehensive protection of the law and immune from attack. In this way, the law does not provide a right for owners to harm others and violate public interests and rights, as well as rights for illegitimate ownership. In many cases, the legislator has stated the exceptions to the rule of subrogation, among which we can refer to the laws related to the expropriation of property of individuals or the limitation of ownership of individuals. Since the municipalities, as the trustees of the city and also according to the law, implement most of the laws and regulations limiting property rights that are approved by the legislator, Islamic councils of the city, the Supreme Council of Urban Planning and Architecture, etc. Therefore, according to citizens, municipalities play the biggest role in limiting the exercise of property rights in cities. According to Article 10 of the Law on Organizations and Procedures of the Administrative Court of Justice, it deals with people's complaints against the municipality and, as the case may be, the implementing agencies of negative or limiting ownership laws and regulations, etc. Also, in cases where people claim that the approvals, circulars and regulations of the city's Islamic councils and other competent authorities are in conflict with the law.

The sale contract is one of the most important and common contracts in Iran's society and legal system. Due to the role and importance of this contract in business relations between people in the society, it has been constantly receiving the attention of researchers and legal scholars. Regarding the sale contract, there are many issues, one of the most prominent of which is the issue of the effects of the concluded sale contract, which includes submission and the time of transfer of ownership. Different legal systems do not have a single opinion regarding the time of transfer of ownership in the contract of sale, and according to the type of transaction in the contract of sale, the time of transfer of ownership of the seller is different. The civil law of Iran, which is derived from the rich source of Imamiyyah jurisprudence, considers the transfer of ownership of the seller to be the time when the contract of sale is concluded, and based on articles 338 and 339 and the first paragraph of article 362 of the aforementioned law and the jurisprudence rule "the seller is the owner of the contract" at the moment of the sale contract, the seller is the owner. The seller knows the customer and the price. According to the registration regulations, regarding the delivery of the immovable property traded in the contract of sale, the transfer of the official document also indicates the delivery of the sold to the buyer. The law on the programs of permanent decrees for the development of the country also sought to resolve the conflict between the previously approved laws and at first it supported official transfers and under Article 62 of the aforementioned law, it recognized and submitted transfers of immovable property with valid normal documents. At the time of transfer, the ownership has been recognized as valid according to the previous laws. In general, the legal rules are based on the fact that the time of transfer of ownership is the time of the conclusion of the contract, and the handing over of the seller is one of the effects of the same contract, and of course, in exceptional cases, we will encounter cases where the bill of sale or the price is a condition for the validity of the contract, and at the time If the condition is fulfilled, the ownership is transferred, but it should be noted that the handing over of the seller is one of the effects of the contract of sale, that the ownership of the sold has taken place at the moment of the contract, and the handing over of the seller is not necessarily one of the effects of the transfer of ownership, except for other exceptional cases that are considered in the civil law. They have considered the condition of validity of the contract of sale.

Copyright and industrial designs in Iran's legal system are supported by the legislator in the two main branches of intellectual property rights, i.e. literary and artistic property and industrial property, and exclusive rights are created for their owners to exploit intellectual achievements. Sometimes intellectual creations are placed in a position that they have the ability to be supported in two or more protection systems in terms of the existence of the necessary conditions for legal protection. One of the notable examples in this field, which is the subject of the current research, is the support of intellectual achievement in the form of copyright and industrial designs, When in the design of a product, elegance, beauty and creativity are manifested in the design, which also benefits from the aspect of originality and novelty, and the question arises as to which of the above formats can better secure the rights of its creator. Considering the various views regarding the possibility of aggregating applicable rights in each form of protection, the current research with an analytical-descriptive approach aims to address the questions that can be raised in this field with regard to the relevant laws of Iran and scrutiny in related sources. And finally, the result is that overlapping is not completely possible, but under legal conditions and conditions, partial enjoyment of some rights and privileges is conceivable at the same time, while many jurists believe in complete separation.

The desire for immortality is rooted in human nature. For a long time, people never liked to be enclosed in parentheses between birth and death. Undoubtedly, having children has been one of the ways to cure this pain and satisfy the feeling of not dying and being limited. The ancient Iranians also covered this need with metaphysical clothing. According to them, a person who has no children has a limited life before the Chinvat Bridge and cannot cross the bridge and become immortal. For this reason, survivors' inheritance laws have become very important with the aim of accepting children and adoption. This article examines the laws of childbearing, laws of Foster child and adopted child, and also the share of inheritance of survivors in the Zoroastrian tradition, and searches ancient Zoroastrian texts, as well as compares them with the personal status of Zoroastrians in contemporary Iranian civil law. This comparison shows many changes and examines the factors of these changes.

The article774 of the Civil law of Iran has annulled the pledge of debt and interest by specifying thenecessity of the property subject to mortgage to be the same. The article 772 of the Civil lawalsoconsiders the deliverance as a condition for thevalidity of the mortgage contract.Accordingly,the mortgage of debt and intangibleproperty is the matter of disputation. From another angle,the everincreasing expansion of needs requires the Iran’s mortgagerights related laws to change to be more efficient.We should be conscious to the main theme and core of issues and be cognizant toward the purpose of rights so as not to be mixed and confusedwith established subjectivities.While aligningwith the existing regulationsof developedcountries such asEngland and France,the expectations related tothe economyand tothe facts should also be answeredappropriately.Also,the abovementionedlaws should havethe flexibility to set the stage for a significant amountof assets to be subjected to mortgage.In this regard,in thisstudy,the authors aim at addressing the following issuesthe current situation of Iran’s mortgage rights byrelying on debt mortgages and deliverance andthe reasons for restrictions.Then,the development of the issue of mortgage in the outsideworld has beendiscussed by relying on the field of banking law,and it has also been pointed out that the concepts of lawunderwent changes with the rise ofNapoléon Bonaparte and the emergence of themodern government,as a result of which concepts such as possession and objectivity became less important.Also,a comparative comparisonwith countries such as France, England,America andEgypt has beenmade inorder to reach a proportionate economic approach,and finally a solution to solve the above problem has beensuggested.

Guaranteeing the quality of the product is a commitment by the supplier or a third party to the presence of a desirable feature or features in the consumer product within a certain period of time for the consumer. Termination of the contract by one of the parties after the conclusion of the contract. Termination of the contract due to legal reasons or by the guarantor will terminate the legal relationship between the two parties and they will no longer have obligations and responsibilities towards each other. Termination of the contract in guaranteeing the quality of the goods as a guarantee of performance and compensation for the damage of the obligee seeks the necessary performance for the guarantor. In the European legal system and sometimes in the Imami fiqh and the Iranian legal system, the right to terminate the contract in guaranteeing the quality of goods due to factors such as basic non-conformity in partial goods, knowledge of the guarantor of non-fulfillment of the contract by the guarantor, delay of the guarantor in fulfilling his obligations, mistake of the guarantor Carelessness of the guarantor in the statements, fraud of the guarantor towards the guarantor, failure to see the goods by the guarantor, and failure of the supplier to guarantee the consumer. In case of realizing the right to terminate the contract for the guarantor, he must notify the other party of the termination within the legal and customary period. .

There are different ideas about the rules of selling mortgaged property in Iranian Law and Islamic Law (Fiqh). This caused a wide divergence of opinion in the courts. The basis of this diversity is related to the question that whether this transaction should be considered in the category of possessions against the mortgagee’s rights or not? Whereas most of the Islamic jurists conceive such transaction to be invalid (Adam-al-Nofouz), contemporary jurists believe in the validity of it and jurisprudence has tended to this opinion.Examining various articles of the Iranian Civil Code shows that from the view of it, this transaction should be regarded as invalid which is confirmed with the permission of the mortgagee or redemption of mortgage.The present study attempts to explain logical basis of this view in Iranian and Islamic Law (Fiqh), resolve existing doubts and determine the rules and effects of this transaction. In this regard, with a comparative study, the rules of this transaction in French Law will be examined as well.

One of the states’ responsibilities for protection of the environment, regards compensation of the damages caused by oil-tankers. The International Convention on Civil Liability for Oil Pollution Damage (CLC) 1969 and Iranian Maritime law, have paid attention to the responsibility of states, vessels and tankers owners, refineries, beavh and offshore facilities proprietors for Oil damages caused by their activities. The present paper adopts a descriptive-analytical approach and by analyzing two instruments, tries to answer the question as to reparation methods for oil tankers pollution in Iranian law and CLC convention and their exceptions. The research’s findings show that by proof of elements, unlimited responsibility can be placed on flag state, owners and operators and if shipowner can prove damage is wholly or partially due to injured party’s own action, he can be exempt from responsibility. In the case of reparation, the Convention has envisaged methods for financing of damages. In comparison of Iranian law and convention, Iranian maritime law in articles 75 onward, has approached limitation of shipowner’s liability on the basis of fault theory while except for sections 2, 3 article 4, the convention holds the shipowner responsible for any damages resulting from discharge or oil leak in the time of accident, on the basis of strict liability and it comes from section 4, article 3 that no claim is heard against the owner except according to the convention, on the basis of risk theory.