contract

Open Access Article

1 - Resale of Goods in Convention on Contracts for the International Sale of Goods and Possibility of Its Justification based on Property Seizure of Debtor in Iranian Law and Jurisprudence
Elham Shariati Najafabadi Abbas Karimi

Resale of goods, by virtue of the Article 88 of UN Convention on Contracts for the International Sale of Goods (CISG) is a non-judicial practice and an exception that in addition to preventing incurrence of losses, is a solution to the undecided state of contracts witho More

Resale of goods, by virtue of the Article 88 of UN Convention on Contracts for the International Sale of Goods (CISG) is a non-judicial practice and an exception that in addition to preventing incurrence of losses, is a solution to the undecided state of contracts without having to nullify the previous contract. This paper intends to study the possibility of justification of this practice based on Iranian law. The author has applied an analytical, descriptive and comparative method to first understand the resale of goods according to the Convention, and identify similar institutions in Iranian law and jurisprudence. Seizure of property of debtor is among the cases that can justify resale of the property accordingly. Manuscript profile

Open Access Article

2 - A Jurisprudential Study of Guaranteeing Principal Capital in Commissioned Manufacture Bonds
Masoumeh Mazaheri Hamideh Goushi Dehaqi

Abstract:In Islamic Sharia law, with respect to the rule of the association of profit and loss, basically the principal capital return is not guaranteed. Therefore, gaining real profit is always associated with the possibility of loss and damage. Whereas in Islamic fina More

Abstract:In Islamic Sharia law, with respect to the rule of the association of profit and loss, basically the principal capital return is not guaranteed. Therefore, gaining real profit is always associated with the possibility of loss and damage. Whereas in Islamic financial mechanisms such as commissioned manufacture bonds, the payment of the nominal value included in the bonds is guaranteed by the publisher in due date. Therefore, the owners of the bonds who are the investors of transactions will not sustain a loss or receive a reward for the reduction or increase in the value of the project upon receiving the nominal value of the bonds (principal capital). However, an analysis of the procedure for publication of the bonds, makes it clear that in commissioned manufacture bonds based on interest, the receipt of nominal value of the bonds will be realized according to the entitlement of the owners in due date proportionate to the total value of the amount due. Also guaranteeing the principal capital by the publisher of the commissioned manufacture bonds is according to the liability of the seller to pay for the object of sale. Moreover, the owners of the bonds as the buyers only own the amount due in duty of the debtor and they shall have no right in project thus commissioned. In this sense, any increase or reduction in the value of the project will have no effect in the amount of their claim. Whereas the owners of commissioned manufacture bonds along with rent with an ownership option are the joint owners of the project, thus in case of increase in project value in connection with the nominal value of the bonds, they are entitled to claim the value added. This is because according to the rule of logics the owner of actual property deserves to take a share of the increase in value of actual property value as he is to sustain the damages incurred on the actual property. Similarly, the reduction in project value in proportion to the nominal value of the commissioned manufacture bonds along with the rent with an ownership option, must be attributable to the joint owners, i.e. investors. Manuscript profile

Open Access Article

3 - Delivery of Goods for Future Transaction and Its Guarantee Based on Imamiyah Jurisprudence and Positive Laws (ius positum)
Seyed Mohammad Sadeq Mousavi Maryam Pourtoluei

When a commodity is submitted by the owner to the other party for future transaction, the mutual relations can be in the form of contract, unilateral obligation or mere authorization. Therefore, the nature of this relationship depends on the intention of the parties and More

When a commodity is submitted by the owner to the other party for future transaction, the mutual relations can be in the form of contract, unilateral obligation or mere authorization. Therefore, the nature of this relationship depends on the intention of the parties and there is no obstacle according to Sharia law to it. The practice has some effects and it is necessary to identify these effects in order to determine the type of relationship of the transactors and arbitration between them. Guarantee on damage or loss of the commodity is one of the guarantees that in view of some jurists is the owner’s obligation, while some consider it that of the receiver. However, since the owner delivers the commodity to the other party upon his will, it is unlikely to consider the receiver responsible unless in wasting commodity or in encroachment. Therefore, guaranteeing the commodity in case of damage or loss is on the owner. Upon evaluation of various views on the nature and impact of the said institution, in this paper all aforesaid views can be taken as one. In this case, the probable problems for the traders in this area will be removed and the ground will be prepared for a fair arbitration between them. Manuscript profile

Open Access Article

4 - A Comparative Study of Mortgage Contract and Its Establishment in Iranian and American Legal Systems
Farideh Shokri

Abstract: According to Iranian legal system, despite the existence of fixed debt in an obligation, pledgee and its waiver, the mortgage contract shall be enforceable and the right of pledgee shall be established on the mortgaged object. This is done without any differen More

Abstract: According to Iranian legal system, despite the existence of fixed debt in an obligation, pledgee and its waiver, the mortgage contract shall be enforceable and the right of pledgee shall be established on the mortgaged object. This is done without any difference between the two stages of creation and establishment of the right of pledge. Even in the case of immovable mortgage it is obligatory to register the document. On the other hand, in Iranian legal system the principle of transferability of the mortgage – however briefly – has been officially recognized so that conclusion of a mortgage contract and the establishment of the right of pledgee is no obstacle to future transfer of mortgage or pertinent rights by the mortgagor in case it does not violate the rights of the pledgee. The rule of this principle, without special stipulations on establishment of the rights mentioned in the contract such as obligation to register the mortgage, will sometimes raise consequences such as dispute in discerning priority, reference to the superficial contracts containing the date of priority and consequently violating the rights of pledgee as well as legal dispute in courts and probably penal procedures. Whereas in many legal systems across the world, the US legal system for instance, there is a distinction between the two stages of concluding the mortgage contract or a pledge and stipulations for the establishment of the rights of mortgage for either side. In these legal systems, a distinction has been made between movable and immovable mortgage and establishment of the right of pledgee on each case requires finishing certain formalities otherwise, the right of the pledgee will be incomplete and the priority will be with the other party finishing the procedure. The question raised in this paper is this: Is it possible to make a distinction between the two stages in Iranian legal system with respect to the existing jurisprudential laws and the enforceable legal texts? Manuscript profile

Open Access Article

5 - A Comparative Study of Undue Influence in British Law and Principle of Duress and Compulsion in Iranian Law
Mohsen Esmaili Kazem Shah’bani

Abstract: In British law, equity courts have created and expanded the principle of “undue influence” due to restrictions with principle of duress to compensate damages imposed on the victims. This legal institution is legally applied in the case of a person who had been More

Abstract: In British law, equity courts have created and expanded the principle of “undue influence” due to restrictions with principle of duress to compensate damages imposed on the victims. This legal institution is legally applied in the case of a person who had been under the influence of a third party, his parents for instance, when signing a contract. Therefore he/she is not legally committed to the terms of the contract he has signed. Enforcement of undue influence is one reason for unfairness of the contract and legally sufficient to terminate it. The principle of duress and compulsion in Islamic jurisprudence supports the will of weak and under-influence individuals to some extent. Duress in case of threat and lack of satisfaction will render the contract null and void. Compulsion, in its totality, has no effect on the contract and it only removes penal liability. Only misuse of compulsion and emergency contracts signed under duress (i.e. in cases compulsion has been practiced intentionally by the other party) are similar to the undue influence, neither of which has received outright support by the legislators. After a comparative study of these two legal institutions in Iran and the UK, this paper came to the conclusion that there is a need to reform the principle of duress and compulsion in our legal system. Manuscript profile

Open Access Article

6 - Legal-Jurisprudential Analysis of Conditional Sale Option in Relation to Transactions with Right of Restitution
Saeed Karami

Abstract: There is divergence of opinions on contracting or pledging in optional sale. Imamiyah jurists endorse the act and consider it as an instance of sale in nature. Sunni jurists identify optional sale as bay’ al-Wafa or buyback sale, associating it with a pledge ( More

Abstract: There is divergence of opinions on contracting or pledging in optional sale. Imamiyah jurists endorse the act and consider it as an instance of sale in nature. Sunni jurists identify optional sale as bay’ al-Wafa or buyback sale, associating it with a pledge (rahn) contract. The conditional sale can be analyzed in two ways: First, the conditional sale involving the contractual relationship between mortgagor (seller) and mortgagee (buyer) stipulated in Article 34 of the Law on Registration of Deeds; Second, the conditional sale that does not govern the contractural relationship between the seller and buyer, and it is a real sale under articles 485-462 of the Law. The conditional sale governing the contractural relationship between the mortgagor and mortgagee is an instance of transaction with the right of restitution (Article 33 of the Law). This is why the law has considered the request for registration of the property in conditional sale as a right for the debtor, because in this type of conditional sale the buyer does not intend to conclude a contract of sale. Any negligence of this criterion will raise ambiguities: First, any conditional sale will be taken as the one with the right of restitution, whereas it is otherwise. Second, the real conditional sale has been well stipulated in Article 399 of the Civil Code; therefore, all sales stipulated in Article 399 of the Civil Code must be considered as the transactions with the right of restitution. It is clear that the existence of the element of option in a sale contract does not mean it is an instance of transaction with the right of restitution. Articles 33 and 34 of the Law on Registration of Deeds are not exclusive to provisions of Article 459, because this article is not about the conditional sale governing the contractual relationship between the mortgagor and mortgagee, whereas articles 33 and 34 of the Law govern such relationship. Manuscript profile

Open Access Article

7 - Legal Status of Contracts Contradicting Conditional Agreements
Mohammad Mohammad Baramai Abbas Asgari

Abstract: Although in conditional contracts the effects of contract appear after realization of the conditionality of the contract, that does not mean the conditional contract lacks its effects before realization of the conditionality. Therefore, in alienative contracts More

Abstract: Although in conditional contracts the effects of contract appear after realization of the conditionality of the contract, that does not mean the conditional contract lacks its effects before realization of the conditionality. Therefore, in alienative contracts, the effect of conditional contract before meeting its conditions shall be attributed to the buyer as a sort of conditional ownership. Perhaps it is because of such right for the promisee in the conditional contract (before meeting the conditions) that any contract contradicting with it may be pronounced non-effective or void. However, a review of the statements of evidence of each one of the three reasons for nullity, ineffectuality and authenticity of such contracts it can be claimed that any contract contradicting conditional contract is sound and valid. This, however, does not mean ignoring the promisee’s rights in conditional contract; rather, by virtue of the conditional contract, the object of transaction along with the buyer’s legitimate right in conditional contract will be transferred to the promisee as is. Of course, for final decision on the conditional contract, the parties should wait for the final status of the conditionality in the contract. In case of failure to meet the conditions, the real right of the buyer in conditional contract over the object of transaction will be null and void and when the conditions are met, one should see when the effects of the conditional contract will be valid. In the meantime, there should be a distinction between formation and validity of the contract vis-à-vis the promisee of the conditional contract. Manuscript profile

Open Access Article

8 - The Nature and Conditions for Transfer of Professional Soccer Players
Seyed Hamid Reza Mousavipour

Abstract: The transfer contract of professional soccer player is the most important contract in this sport. According to this contract, the player is committed to play for a certain club within a certain period of time for a specified sum of money. Conclusion and termin More

Abstract: The transfer contract of professional soccer player is the most important contract in this sport. According to this contract, the player is committed to play for a certain club within a certain period of time for a specified sum of money. Conclusion and termination of this contract are subject to special international and domestic rules and regulations that are quite distinctive from other contracts. Like a person’s hiring contract, this contract is a binding obligation that will be enforceable after signing of the two parties. The contract parties are the professional player and the sports club that must possess capacity to sign a contract. This contract is of binding obligation, thus it shall be only null and void with the consent of the parties or upon a justifiable excuse. Meanwhile, the contract parties should act based on bona fide. In this research work, we will first review the nature of contracts in Iranian law and then proceed with studying conditions for validity of the contract according to the international and domestic rules and regulations. Manuscript profile

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