نشریه پژوهش های حقوق تطبیقی
سال پانزدهم شماره 3 (پیاپی 73، پاییز 1390)

The Internet Services Providers (ISPs) have liability for the injurious acts of themselves and their subscribers. Determining the bases of their responsibility is the most important subject about them. In this regard in the foreign law, someone believes that the fault is the base, and others believe in strict liability. Thus enacting rules such as Electronic Commerce Directive and DMCA were upset to appear a new system applying on liability, i.e. non-liability regime. Thon, under some circumstances the Internet, service providers, known as intermediates, would have no liability for other contents and activities. Generally speaking, in the current legal system of Iran, there are no certain rules about it, and according to the Civil Liability Act, liability is based on negligence. In this field, however, the presumption of negligence may be useful.

The doctrine of “Loss of Chance” recovers damages that occur as a result of destruction of prospect for achieving a favorable outcome. The outcome might have been acquiring benefits or preventing harms. There is no consensus among jurisdictions about the entitlement of the losers of such chances (chances to acquire benefits or to prevent harms) for compensation. Some European countries, such as France, have strongly supported the doctrine, whereas some other jurisdictions in the North American region, such as South Dakota State, have prevented the doctrine from any further expansion using statutory interventions. This article reviews the current application of the doctrine of “Loss of Chance” in the European and the American jurisdictions. It also examines the applicability of this doctrine in the Iranian legal system. Although neither relevant statutes nor jurisprudences have recognized the doctrine of “Loss of Chance” in Iran, the underlying principles of the Iran’s tort law and Sharia may imply its applicability. However, regardless of the legal grounds, some procedural and enforcement barriers may prevent this doctrine from being invoked in Iran.

Under Article 50 of the CISG, if the seller delivers a good that does not conform with the contract, the buyer may reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time. In this case, the buyer acts unilaterally and is not subject to his/her resort to the court and substantiating the lack of conformation before it, although, in any case, the convention provides remedy for the buyer resorting to an undue option. In some cases, in Imamia Jurisprudence and Iran Law, as where there is the claim for some portion of the object of sale belonging to the other and the buyer may be able based on option in sales unfulfilled in part to get some portion of the price and, in some places due to defect in the object of the sale, may cancel the sale or keep it at the price of getting compensation; they all can be legally considered as instances of price reduction. This paper attempts to compare the instances of price reduction in the 1890 Convention, Imamia Jurisprudence and Iran Law, and while putting the concept of price reduction in the Convention, examines its similarities and differences with the ones in Imamia Jurisprudence and Iran Law. In the end, it is discussed whether this option can be possibly applied as a rule in other transactions or not.

Registration of the voters on the electoral lists and their local connections to the constituency are the conditions to apply the right of vote in many of political systems. Registration of the voters on the electoral lists is compulsory in France. In spite of the long experience of getting several political votings in Iran, regulating the electoral lists has not been stipulated in Iran yet. Due to the lack of electoral lists, it is not possible to guarantee the enforcement of condition of local connection of voters to the constituency or deprivation of insanes and disposed persons from social rights in participation of political elections. Local connection to the constituency for registration on electoral lists and applying the right of vote are the conditions in all political votings of France. Only the law of local Islamic council's elections in Iran stipulates the necessity of local connection of voters to constituency. Owing to the non-stipulation of constituency abroad and non-recognition of written and agency votes in Iran, Iranian citizens residing abroad unlike to French citizens residing abroad have been practically deprived of applying the right to vote in many of political elections.

Transferor’s duty to make the receiver capable of using subject matter of the contract (i.e., technology) is an essential element of the purpose of the contract. For this reason, the duty to transfer shall be treated as an essential contractual duty of the transferor. With due consideration of the general principles of contract law, usage employed in the market of technology transaction and relevant laws of certain countries actively engaged in this market, a number of significant results come into view. First, this obligation constitutes the core of the transferor’s contractual obligations. Second, this duty shall be regarded as an implied term, which does not need to be agreed in express. Third, to perform this undertaking, the transferor shall also be impliedly obliged to warrant the sufficiency and adequacy of the technology. Analysing the warranty obligation shows that only some parts of this duty shall be treated as implied term, and the others need to be agreed by the parties in express. Furthermore, the present study shows that the receiver’s main concurrent obligation is to pay money in exchange for the duty to transfer. This obligation can be performed in three lump sump payment, running royalty payment, and a combination these two. When the second method is used, it will serve the receiver because it will correlate the transferor’s interests into efficient performance of the technology. In addition, duty of confidentiality, territorial restriction, defence of the aggrieved party against any party’s rights and claims are further obligations imposed on the parties under this contract, though it would be difficult to treat them as the main contractual obligations.

Since the majority of damages due to infringement of patent are lost profits, it is essential to govern its compensation. The US legal system has admitted the owner lost profits and reasonable royalty as two criteria for determining compensation. According to 4-staged Panduit’s way, in case of existence of demand in the market, absence of substitute in the market, patentee's ability to meet demand and proving profit margin, the 1st criterion is exploited. According to lost profits, only those profits can be compensated whose causes are available and the obstacle is absent. In case that even one of the Panduit’s requirements is not met or, at the request of the patentee, the amount of compensation is determined in compliance with the reasonable royalty. In Iranian law, separation of remediable and irremediable profits is treated like that of the USA, and only part of the future profits is remediable according to the principle of lost profits. In other words, patent profits fall into 3 categories as existing, pseudo-existing and probable. The 2nd category whose cause is available and the obstacle is absent, is remediable like the 1st category, as it can be commonly considered pseudo- existing, whereas the 3rd category is irreparable due to the absence of causes or presence of obstacle.

There has long been no compromise between the experts about an important subject such as public regularity. In spite of the high importance of public regularity concept in ordering the legal system and also confining legitimate rights of citizens and exposure of legal return, according to contravention, passing or deviation from it. Hence, two different proponents and opponents have tried to prove their own beliefs against each other according to applying reasons and each of them has offered some logics about their own rightfulness. The authors regarding the parties’ reasons, necessary pillars and criteria about this idea believe that, since in all topics related to public regularity, the target is to avoid doing any task, there identifying and defining the concept of public order is an important issue which cannot be overlooked easily. Authors defend a doctrine with different reasons that needs and necessitates presenting a definite description. It is also emphasized to explain this concept and remove the existing challenges need endeavor of legislators and lawyers in illustrating profits and social benefits as an undeniable subject.