فصلنامه پژوهش حقوق خصوصی
پیاپی 42 (بهار 1402)

Undoing each obligation, whether it is legal or contractual, is harmful, and the obligator is bound to compensate the loss by way of payment for damage. Delay in payment of monetary obligations is not out of this rule. The main question is, what date is the beginning of the calculation of late payment damages subject to Article 522 of the Civil Procedure Code? Date of main debt demand or date of the due date or date of bringing an action? Is there a way to compensate for damages or is it used to compensate for the decrease in the value of the banknote in monetary obligations? The result of this research is that the debt demand date for a monetary debt that has a due date, cannot be a criterion for starting the calculation of late payment damage, but the mentioned date (demand) is only for measuring the debtor’s financial ability. Because the debt demand time is used where the date of fulfillment of the obligation is not known or the object of obligation is one of the obligations on demand. Also, this article is not for paying damages, but only is a method to obtain compensation for the decrease in the value of the banknote in monetary debts.

Articles 454 and 455 of the Civil Code are ambiguous in terms of the examples of the "right of rescission", the examples of "the implied condition of prohibition of the customer in the assignment" and the meaning of the word "void"; however, the supreme court decision as a unified judicial precedent No. 810 dated 24/06/2021is also vague and outside the scope of the lawsuits. A court has described the option of violation of the payment of installments and the delivery of the goods upon rescission as an implicit prohibition of the customer's assignment, and has ruled on the invalidity of the possessions and eviction. But in similar lawsuits, another court, from the terms of the same contract, did not describe such a concept, and with a different interpretation of the law, ruled against the seller. The supreme court emphasized the intent of the contracting parties in the case of the right to rescind the contract and return of goods sold, by commenting on an implicit matter, and did not comment on the legal status of the possession of the seller, and believes that the owner's right of priority does not invalidate the condition and the right of rescission against the return of the goods. While, according to the opinion of the majority of late and contemporary jurisprudents, deduced from Articles 454 and 455 of the Civil Code, the customer's right of assignment in the contractual right of rescission is dependent null. Thus, since the implicit matter of the return of goods sold and the request for eviction is based on the request for the cancellation of the assignment, the decision of the court is logically voidable.

The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application in the law have limited the space for the effectiveness of Mudarabah. It seems that this dispute can be resolved in the context of the modern legal system and with the presence of the school of positivism, which has an emerging role in the subject laws, along with the generality of Muslim jurisprudence. In fact, the result of the interaction of the two schools is the reason for the implicit establishment of sovereignty that positivism refers to in the heart of the laws. This research reveals that the meeting place and the creation of disagreement in the discussion of guarantee conditions in Mudarabah, in line with the rules of the school of positivism, can be resolved by maintaining the ideals of legal and jurisprudential justice and economic efficiency. Therefore, the application of the law in attaching a new contract to Mudarabah is not necessary, and it is possible to explain the investment with the condition that the investor does not guarantee the damage to the capital in the form of identifying a new contract.

Vegetative State is a type of brain damage that despite the death of the brain hemispheres, the brain stem continues to work. In this situation, the patient has no mental and cognitive function and is not able to consciously communicate with the environment. Due to the lack of relevant laws in this area in most legal systems, the legal aspects of this situation have not been adequately explained. The issue of the life or death of these patients is one of the important issues for explaining the legal status of patients in a vegetative state. In this study, according to the religious and jurisprudential concept of death according to the sanctity of the right to life and with the similarity with the regulations governing the incapacity, the view of being alive has been accepted and according to this view and with a comparative approach, the legal effects of vegetative state has been analyzed. The selection of a guardian and trustee and the transfer of financial affairs to them, the possibility of seeking divorce due to circumstances created by the spouse in a vegetative state, and the termination of personal contracts are the most important legal effects that have been accepted in this study

One of the most pivotal and practical subjects of contract law is whether one may dispose of his or her contractual obligations through the issuance of negotiable documents. This article focuses on the issuance of such instruments as a cheque in the performance of monetary obligations when the issuance is dishonored. In fact, the question is whether the issuance and delivery of such instruments convert a civil law obligation into an obligation arising from the issuance of negotiable instruments or whether it is possible to rely upon the original obligation with all its guarantees and consequences. The statutes are silent on the matter. Scholars and jurisprudence are divided. This article comparatively examines various legal systems and international instruments like UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law, and by relying on the general principles enshrined in Article 3 of the Code of Civil Procedure, concludes that the better approach is the one that subscribes to the survival of the original obligations. It is hoped that this comparative study can set a model for our future legislative initiatives.

For decades, companies involved in the petroleum industry are committed to complying with International Petroleum Industry Practices (IPIP) or similar terms in performing most of their obligations and operations. This paper examines the consequences of a breach of IPIP in light of reviewing dispute resolution methods in different regimes governing the upstream sector. Reviewing disputes and lawsuits related to the breach of IPIP suggests the different enforcement methods under the various regimes of operation in the upstream sector. With regard to the Iranian petroleum industry, using the results of this comparative study, it was shown that due to the contractual regime used in the relations between the National Iranian Oil Company (NIOC) and International Oil Companies (IOCs) involved in the development of the Iranian upstream sector, any dispute over IPIP as part of contractual terms will cause new risks by triggering the arbitration mechanism. It was also suggested that the preparation of IPIP in the form of precise documents and their periodical update by relevant authorities, including the Ministry of Petroleum, may reduce disputes between the contracting parties (NIOC and IOCs) and determine the latter’s scope of authorities related to selection and application of IPIP.

Based on the famous opinion of jurists And the majority of lawyers, the first principle in seizures on other property is based on the guarantee possession And all kinds of domination over the people's property have been condemned to liability of unlawful possession and the order of special rules of usurpation considering the pure obedience of the legislator in enacting Articles 301 to 327 of the civil law, accepting the well-known opinion of the jurists in a general or general manner, this extremist view has been seriously criticized by the commentators of the civil law. And basically, the application of the rules of usurpation to non-aggression, in which the basis of possession and domination is based on ignorance of truth and error and lack of malice, is in clear opposition to the principles and rules of justice and fairness and the requirement of the principle innocence. Therefore, in this article an attempt has been made with the help of scattered jurisprudential and legal opinions and related legal materials in order to modify the popular opinion and explain the responsibility of non-aggressors based on the use of other sources of coercive guarantee take a step.

The digital revolution has led to growing smart goods, which today have become an important economic and social element. This has prompted the European Union to lay down provisions on the basic elements of the sale of goods, including material conformity of digital goods, in order to make the most of the existing capacity and economic growth of its member countries. The issue of material conformity of goods with the contract has always played a central role in domestic and international sales transactions. The mentioned directive, contrary to the domestic laws of most countries, provides a single concept of goods conformity and implements the same performance guarantee in case of non-conformity. But in Iranian law, there is no specific regulation on the subject of goods conformity, and it sporadically provides subtle distinctions on the subject of goods conformity, which has caused differences between lawyers and court opinions, and as a result, the lack of development of cross-border transactions. Therefore, the purpose of the present study is to determine the seller's obligations regarding the material conformity of digital goods with the contract by examining the aforementioned instructions and to analyze this situation in Iranian law. These studies showed that in the sale of digital goods, the subjective and objective requirements of conformity, in addition to the physical component of the goods, must also be present in its digital component, and the seller is committed to providing updates. However, there is no explicit text in this regard in Iranian law, but traces of these requirements can be found in scattered laws.

The principle of documenting, reasoning, and justifying the opinions of quasi-judicial authorities is one of the elements of a fair trial. Given that administrative decisions are linked to the public interest, the application of this principle in decisions and rulings issued by these authorities, as well as the oversight of the Court of Administrative Justice as a judicial body on the rulings issued by these authorities, can be necessary to evaluate the performance of the government and the judiciary against the public conscience of society. Examining the judicial procedure of quasi-judicial authorities and the Court of Administrative Justice, it seems that paying attention to the principles of a fair trial in general and monitoring the reasoning and documenting of opinions and decisions in particular, has not yet found its proper place. These principles and their importance have been mentioned in the jurisprudence of the Court of Administrative Justice, but this issue has not been considered by the quasi-judicial authorities. This issue has not yet reached its true place in the jurisprudence of the Court of Administrative Justice, and this issue has become more and more important due to the pervasiveness of fair trials in legal systems.