نشریه دانش حقوق مدنی
سال دوم شماره 1 (پیاپی 3، بهار و تابستان 1392)

File Sharing of the literary and artistic works are popular among different social groups.The advent of file sharing technology has allowed consumers to downloading and uploading music, books, video games, and other protected works. Download and Upload works of literary and artistic works are considered the exclusive rights for owners, thus it has considerably weakened effective copyright protection. Copyright exists to encourage innovation and the creation of networks, in other words, to promote social welfare. We analyze it through descriptive analytical method as the exception of copyright and highlight the different aspect of the file sharing and in final it will be allowed based on the equity doctrine.

France is regarded as timeshare origin; USA is also one of leaders to accept timeshare phenomenon to attract and develop tourism industry. In American law timeshare of owners has a fee simple absolute that according to the person will acquire all of the ownership rights and can be an interest property or acquiring interest right for a certain period of time. As that’s such a concurrent in timeshare, analyzing the different kinds of concurrent ownership in US of America,It’s verified that both two types of timeshare are considered as tenancy in common. There are timesharing in two ways, Fee simple deeded and Non deeded in American law that Non deeded divided in Leasehold and Right to use. Timesharing to be used fixed week, floot week, Split week, Biennial, Lock out off, Fractional ownership, Points – based system.

Banks are of the most important pillars in each country; which undertake its main economic issues in different ways. Protection of capitals and monetary reserves of people _that they give it as the deposit to the banks_ is the main duty of the bank and is the source of bank’s financial affair rotation. The civil law does not define this deposit’s essence clearly. Only in the text of 4th article from “the legal essay of bank’s operations without usury” is written: the banks are required to repay the main loan (Gharzol-hasane1) deposit (current account and bank of deposit). The jurists and lawyers discuss about specifying the deposit’s essence very much, and they state different ideas, some of them pointed it out as loan, someone else as deposit, and the others limited it as partnership. We can sketch a new discussion about deposit’s essence, that Ayatollah Makarem is its believer. This theory is “depositing of worth of the commodity (money)” as the essence of the bank depositing. This article assesses the corners of this view.

Good faith is to do the tasks honestly, fairly and logically in way that parties of the contract expect it from each other along with making efforts to respect rights of others and getting away from any bad faith and deception. Articles 667 and 680 of civil law and article 399 of commercial law indicate the attention of Iranian legislature to Good faith principle. One of the consequences of studying good faith principle in Emamiyeh jurisprudence and civil law is proxy contract. Proxy is a contract in which someone chooses someone else to do something as his or her representative. Nature of the proxy is based on complying with ultimate good faith by both parties. So, it is possible to declare the invalidity of contracts in which agent does not act with regard to good faith. However, necessity of observing good faith is a mutual obligation that both client and agent have to comply with that along with protecting third party that owns good faith in apparent proxy.

Ijarah (lease), Murabaha and Mudarabah (profit sharing) sukuk are of the new financial instruments which have been welcomed in Islamic countries. This is because, on the one hand, the tool is based on Islamic contracts and on the other hand, the absence of usury in these securities. In the process of the above sukuk publication varies foundation and individuals are involved which cause different legal relationships. Understanding the nature of these relationships to determine the legal rights and obligations of each party is important. These new financial instruments, are very important to lay down the relevant laws. One of the relations which involves in all of the sukuks is the Issuer and Special Purpose Vehicle (SPV) relationship. Issuer should refer to the SPV for publishing the securities. The legal nature of this connection to varies contracts like individual contracts, commissioning and attorney is analyzable. In this article, after survaying of the probability of governing of these contracts over the mentioned contract, we concluded that in present circumstances, the best option for the governing of this connection is article 10 of the civil code and the freedom contractual principle. Since the related contents of contracts are analized based on the relationship among them, This paper is of descriptive - analytical type. The contents of this article would have many privileges to register and correct the laws and being more applicable. Data collection is based on library and electronical sources.

Even though the parties to a contract must perform their obligations in the specified time, but in some cases the obligor does not perform his/her obligation at the mentioned specified time. A clear instance of such case is a delayed performance, but in some circumstances, the obligor desires to do his/her duty before the defined time in the contract. On such occasions, legal state of performance should be considered from the legal and jurisprudential point of view and this question needs to be answered that whether or not the obligor has such authority? In Iranian positive law and legal literature, unlike the matter of delayed performance, the early performance has not been considered and there are no records to suggest otherwise, but in Islamic law (Shia and Sunni schools) the subject has been studied and different views have been expressed. Also in International instruments regarding contracts such as CISG, UPICC and PECL some rules related to the subject have been predicted; therefore the present comparative study can fill in the gaps and be a model law for future legislators.

The party who is true to the contract cannot sit and wait for the other party to breach the contract, but must become active in order to minimize the loss or to prevent it. In otherwise, one defense that can be expressed by defendant of tort action (damager) is duty of aggrieved party to minimize the loss or to prevent it. Mitigation is the principle that a party who has suffered loss (from a tort or breach of contract) has to take reasonable action to minimize the amount of the loss suffered. This rule reflected in articles 77 and 80 UN Convention on International Sale of Goods (CISG). In Iranian law, the rules of IQDAM, causation and LA-ZARAR are considered as the basics of mitigation of damage principle. Necessity of this research originates with globalization, movement of unification of contract law affects into national law systems. So, it is essential to clarify the needs and barriers of unification of contract law through a comparative study. In this paper, theory of mitigation in CISG and Iranian law is surveyed.