نشریه پژوهش های حقوق تطبیقی
سال شانزدهم شماره 3 (پیاپی 77، پاییز 1391)

Nowadays، due to the ever-increasing trade arrangements in international arena and the impossibility of reviewing all terms and conditions of each contract، traders are left with no choice but to use standard forms، which are inclusive of contractual terms and provisions. It is problematic to use such forms when the parties go on to perform the contract، disregarding the discrepancies existent in the forms. The question arises now is that whether such a contract can be deemed concluded? In case the answer is affirmative، one should see based on whose form’s terms and conditions the contract should be entered into? CISG has no explicit provision with respect to this phenomenon known as “battle of forms”. Scholars are in disagreement as to whether one can infer the answer from the CISG’s provisions. Iranian law is also silent in this connection. Apparently، considering that a non-conforming acceptance is not looked at as a new or a counter-offer and whereas no contract has been concluded، it is negated to decide that the terms of which form prevail. Obviously، in such a situation، the relations of the parties are regulated and analyzed by recourse to the general principles of contracts regarding null and void agreements.

The “Right to Strike”، as a fundamental right for demanding the legal claims of employees has maintained an important role in regulating the labour relations in the last decades. Importance of this fact، especially about the public sector servants with attention to organic sensitivity and function of this section، becomes multiple. Recognition of this legal phenomenon requires understanding the public sector servants، and illustrating the general approaches about recognition and regulation of this right. French approach is based on recognition and ensuring of this right about the mentioned servants with some restrictions and prohibitionsi، while English approach is based on denying the right natured of this right. With attention to legal vacuum of public sector servants’ right to strike in Iran، in this paper، we are going to investigate and analyze each of the mentioned approaches and theirs affects on regulating of the servants’ right to strike، and then select a dominant approach.

Amendment and supplement of acts show dynamism of the legal system. Patent Protection Act 1386 (2007) opened new landscapes toward the protection of industrial property. Although many positive steps have been taken in its codification، the law suffers from some disadvantages to which ignorance will impair scientific development of the country. Among the most important defects is lack of production of small inventions. In this article، by describing these defects، an entity has been suggested as a supplement system. In addition to covering small inventions، the system has undeniable advantages، which will help to supplement and eliminate imperfections of the current system

In this paper، we clarify the nature of the legal acts in general، and the practical results of this discussion. Then we provide the context for a comparative discussion of the definition and nature of marriage in Islamic jurisprudence، Iranian law، some Islamic countries’ laws، and some western countries’ Laws، especially the United States، to show the essential elements used in the context of marriage. In this regard، we introduce a different model that represents the essence of marriage as a contract، status، institution، personal choice and finally، worship. The practical benefits of our selected Quran model in concerned with the set of rules governing marriage، have been taken in our attention. Recently، we have offered a new definition for marriage that seems to be proper for Iranian legal system.

The subjective right has various meanings، including constitutional right، which individuals have just for being human. In traditional legal texts، it is considered that these rights are applicable in state-itizen relation، and it is believed that in the unequal relations between the state and citizens، “constitutional rights” is a device to protect individuals against strong party and limit the state’s power so that people’s rights would not be violated. This classical function of constitutional rights is called “vertical effect”. Currently، there has been forming a new tendency in the legal literature of some countries such as Germany، England and Netherlands that is going to spread the domain of constitutional rights and applying it in private relations. This phenomena is mainly named “horizontal effect” of constitutional rights or constitutionalization of the private law. These rights may be directly invoked in adjudicating private disputes or enter the private law through interpreting it’s general clauses such as good morals، public order، good faith، etc. The advantage of the latter one is that the private law remains independent، and concerns in relation to its disappearance would be diluted.

Under company law، the term “statutory (actual) merger” in its broad sense is meant that one، two or more corporations، especially stock corporations، are controlled by a single corporation. Stock corporations can control other stock corporation (s) in three ways: merger، purchase of stock، and purchase of assets. The first type is named “actual merger”، and when it takes effect، the separate existence of merged stock corporation (s) ceases to exist، and the survivor or new corporation will be the successor of the merged corporations. In the second and third types، which are generally referred to it as “acquisition”، the separate existence of merged stock corporation (s) continues after conclusion of the contract. In the light of the special nature of statutory merger، and the established principles therein، which are contrary to the general principles applied to usual agreements and contracts، only those principles can be adopted in the prescribed cases. Also the rules and principles named in the Article 105 of the 5th developing Act are not enough. Thus، it is necessary for legislature to enact complete regulations applicable to actual merger; as it did in cooperative companies، so as to extend such rules to all types of corporations. The definition of “Statutory (actual) merger” is the same in Iranian and English laws. It contains simple merger and combined merger in English law the statutory (actual) merger is unilateral merger and bilateral or multilateral merger in Iranian law; this category is compatible with the simple merger and complex merger in English law.

Civil law considers barter as certain contracts while it offers no criterion for differing barter and selling، which is unlike of jurists’ opinions. These two concepts are really near together but they should not be considered as one because there are not the same rules on them. For example، specific sentences of selling concept like fraud option، assembly option and etc. Can not be seen in barter. In The English Legal System، the concepts of barter and selling are separated، and some criteria for differing them are offered. This research paper tries to explain the criteria in The Iranian and English Legal Systems. Finally، it was found that the criteria of Iranian Legal System are based on the referring to the parties’ intention (personal criterion)، and if it is impossible، referring to the custom (public criterion) is the most appropriate to make a harmony between the different concepts.