فصلنامه پژوهش حقوق خصوصی
پیاپی 9 (زمستان 1393)

In order to ensure a timely performance of contractual obligation, the use of guarantee is regarded as one of the most appropriate ways of dealing with a breach of promise. Compared to the Convention on the International Sale of goods, it is difficult to find a legal basis for a possible breach in national law. Nevertheless, in a substantial number of cases in Iranian law, by considering the theory of possible breach, guarantee has been used to address the possible breach of promise by promisor. Until this legal gap is filled, it would appear that it is appropriate to use the principle of demand guarantee for the purpose of securing the performance of contractual obligations in domestic law.

Deals of stocks in our securities market are divided into retail, block and bulk deals. In block and bulk deals, larger and sizeable quantities of stocks are exchanged between two parties to the contract. In these types of deals, stock price is usually higher than retail deals. In addition, trade and settlement mechanisms are different. Bulk deals are divided into regular and conditional in terms of the time of price settlement. Both regular and conditional bulk deals have in common concerning the process of offering potential buyers the purchase of stocks; however, conditional bulk deals are accomplished in a different manner. In regular bulk deals, exchange of considerations is carried out in 3 days, but in conditional bulk deals, while stocks are transferred as the deal is concluded, a part of the price is paid subsequently out of Tehran Stock Exchange (TSE) or Farabourse mechanism. Therefore, this study examines the bulk deals of stocks in Tehran Stock Exchange and Iran Farabourse Company by illustrating similarities and differences between rules governing the bulk deals in these two markets.

The creditor is entitled to collect the debt from the debtor. The possibility of collecting the debt through the debtor’s body organs is a disputable issue. By explaining different ways of collecting the debt from the defaulting debtor, such as compelling him to pay his debt, the court’s order for the payment of the debt from the debtor’s property, imprisonment and the rules relating to insolvency, this article examines the possibility of collecting the debt from the debtor’s body organs. The issue is whether human being has such a control over his body organs for marketability of these organs and to transfer them. By taking into consideration the fact that the body organs have market value and human being have dominion, but not ownership, over their body organs, it can be concluded that the body organs are not part of the debtor’s property. Thus, it is not possible to compel the debtor to cut his body organs for the payment of his debt. It is not also possible to cut his body organs in return for his debt when he is dead. But if the dead’s organs are sold, they can be given in place of his debt.

The contract of surrogate mother is a contract in which a woman accepts to carry an embryo made of sperm and ovule of intended couple in her womb and delivers child after the birth. This new contract has posed a lot of questions, as far as jurists and lawyers are concerned. One of the most important issues in this regard is the determination of the legal nature of the surrogate contract, since the issue of the legal framework of the contract adaptable with the common will of the parties has a significant impact on the determination of the legal relationship between the parties. Jurists and lawyers suggest and examine some legal structures, such as lease, award, loan, deposit and innominate contracts, as proper structures for this contract. This article discusses conclusion of the surrogate mother contract through the above-mentioned legal structures. It argues that the legal nature of this contract cannot be based on nominate contracts, and therefore, it can be justified on the basis of article 10 of the Iranian Civil Code.

One of the most widely used independent bank obligations in international trade law is a demand bank guarantee. This is always exposed to the risk of unfair demand, because it is payable on demand. It means that the beneficiary calls and receives guaranteed fund despite of full performance of the underlying contract by principal. In fact, documentary characteristics and the principle of independence provide an opportunity for the beneficiary to affect the exceptional and secondary function of bank guarantee as a result of an unfair demand. The question posed is how unfair demand can be prevented. By examining rules and regulation governing international trade and the draft bill on commercial law approved in 1391, it would seem that among possible solutions, such as the requirement of presenting a court judgment or an arbitral tribunal award and a statement by the beneficiary or principal indicating points in which the applicant is in breach of its obligations, the assumption of non­performance of the contract, in the event of demand by the beneficiary, is the most appropriate solution.