مجله نامه مفید
پیاپی 79 (شهریور 1389)

This article analyzes the Principle of European Contract law (PECL), the Draft Common Frame of Reference(DCFR), the UNIDROIT Principle of International Commercial Contracts and Iranian law, if contracts can be terminated or adapted in response to fundamental change of circumstances and the hardship. In addition, it describes the solutions in the PECL and the UNIDROIT Principles and Iranian law. in Theory, There are three solution in response to Hardship situations: Dissolution by law, adaptation and termination of a contract. the PECL and the UNNIDROIT Principles following the recognition of the renegotiation by the parties as a first solution and then they envisage the termination and the adjustment of contracts.Although, the Iranian law dose not recognize the theory of Hardship (as general rule) expressly, but there are some principles and bases can justify the theory of hardship in this legal system. Especially, the principle of distress and constriction will be effective in accepting the solutions of adaptation and termination of contract in the Iranian legal system.

In the present paper, it is tried to revise an order it's correctness not questioned up to now. This order is the future effect of cancellation. Lawyer and jurisprudent's minds are accustomed to the fact that the effect of cancellation is towards the future and consequently as soon as the realization of cancellation, contract is disappeared and the previous effect of it remains compeletly. But what has become present in today international transactions is different from the common procedure in our domestic law. According to the recently mentioned theories, cancellation leads to the retrograde decline of the contract. It seems that choosing this theory as the preferred one is suitable. The present paper tries to approve this theory and promotes the fundamentals of the favoured theory.

In contract law, especially in trade law and more particularly international trade, due fulfillment of contractual obligations is the most important issue. So the greatest concern of traders is non- fulfillment of obligations. Hence a lot of rules have been laid down for breach of contract. As a result of breach of obligation by a merchant a chain of merchants linked by intertwined transactions might see themselves unable to fulfill their promises and the ensuing situation undermines economic public order. On this basis the mechanism of specific performance has been established in many legal systems. Although specific performance after a breach may sometimes be considered as fulfillment of contracts, specific performance cannot be considered a true interpretation of the principle of pacta sunt servand. Additionally todays, the theory of specific performance has no due function. So we should interpret” the necessity of contracts principle “as necessity of meeting of reasonable expectations at the conclusion of contract and the right of promise to choose avoidance, damages and specific performance.

Termination of a contract, while observing the regular protocol has some consequences. The natural effect of termination is dissolution of contract and removing the responsibility of persons from those obligations that they have taken due to contract. In addition, termination of contract leads to returning the obligations to the status of them before contract, For example, if the salesman would have submitted the stuff or the buyer would have paid the price, with loss of sale, each of the persons should return the case of bargain. With this premise in mind, if there is some harm to the stuff, what could be done? No doubt, in case of loss or causality, the possessor is the guarantee and there would be the rules of delictual responsibility. However, if after the loss of contract, there is a harm to object of sale and the price, the law relation between the two sides in this case is something that could be investigated and discussed.

This article aims at investigating the doctrine of the margin of appreciation and the expansion of the jurisdiction of the states in limiting the right to freedom to manifest one's religion in order to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. It also seeks to find the answer to the question of how, in limiting religious freedom, the European doctrine of the margin of appreciation can be evaluated regarding the status of Muslims in Europe. Furthermore, it purports to confirm the hypothesis that this doctrine is helpful but not sufficient in limiting the implementation of the right to freedom of religion considering the impact of changing conditions and the diversity of religions and cultures. Finally, it offers some solutions.

After the World War II, the growth of the command economies and the development of the “human rights” discourse, imposed significant exceptions to the customary principle of the State Immunity. By the recent development, a State would not enjoy from immunity for human rights violations. However, States practice, including the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, limit such exception to the territorial torts. One may argue that at least, in case of the extra-territorial violation of the jus cogens norms of human rights, there might be a conflict between immunity and the jus cogens norms. Current article is seeking to prove this proposition that theoretically speaking due to the substantive character of claimed jus cogens norms, the conflict between the mentioned norms and procedural rule of immunity seems unlikely. In addition, because of the customary character of the cited norms, it can be said that there is not sufficient positive state practice in favor of the conflict between newly emerged customary law (jus cogens norms of human rights) and the former customary principle of State immunity.

Can the violation of human rights be considered as an exception to the concept of judicial immunity of State? The judicial immunity of State has been influenced by the international developments. This is a part of a huge international development including the restriction of State sovereignty. In fact, the concept of sovereignty has been subject to various regulations in light of developments of international law. Therefore, the absolute sovereignty is no longer acceptable, and there are many cases where the States should be accountable with regard to their conduct, one of the most significant of such cases is the obligation to observe the human rights and fundamental freedoms. It has been argued, in this paper, that the basis of immunity is in the sovereignty of States. If this claim is accepted, its concept, limitations and effect should also depend on the current scope of Sovereignty. Although this can not be observed in national legislations and international conventions as well as State practice, it seems, however, that States can restrict immunity of other States with regard to grave violation of human rights using the existing rules of international law i.e. counter measures.

Manner of composition of Article 138 of Constitution of Republic Islamic of Iran and classic conception of separation of powers has created a presumption among some experts that in Iranian legal system, no one has power to enact regulation but council of ministers or any of them.In this article, with regard to the practical needs of modern function of the Executive Power and new reading of separation of powers in some known countries, it is shown that modern perception of separation of powers does not forbid the power of regulation but only restrict it. In addition, the study of practice of legislator, the Guardian Council, and the Court of Administrative Justice rejects any exclusive perception of legal order of Article 138. This means that substance of that Article indicates an exclusive meaning only at the frame of Executive Power in its limited concept and can not negate competence of regulation from other officials out of Executive Power. Therefore this competence is not general but is limited and is subject to necessity arising from demands about legal competence of authorities mentioned in this essay.