List of Articles

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  1 - 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
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  2 - A Review of the Impact of Bona Fide on Waiving the Liability of the Physician in Iranian Law (In Comparative Study with Canadian Good Samaritan Law)
  Zahra  Tabesh
  Abstract: Due to its ancient history and special criticality, the medical profession has always been accompanied with serious legal challenges in the balance of rights between the physician and the patient. It is for years that bona fide is being used as a criteria and More

  Abstract: Due to its ancient history and special criticality, the medical profession has always been accompanied with serious legal challenges in the balance of rights between the physician and the patient. It is for years that bona fide is being used as a criteria and a guarantee for the enforcement of law by the Iranian-Islamic jurists and law experts. Despite the fact that medical acts are considered bona fide in nature, in the judicial procedure and system of Iran, it is difficult to approve the good intention of all people rendering medical services. Therefore, despite a long history of bona fide and the liability of the physicians, a review of this principle in comparison with the Good Samaritan Law in Canadian law - as its common law likeness – could open new horizons to clarifying the liability of the physicians. According to the findings of this study, Good Samaritan Law is applicable as a liability outside the terms of the contract and only in emergency conditions and chiefly in the case of a non-physician. However, bona fide has a broader and more general coverage that can include – in case all requirements are met – all areas of liability of the physician. The demonstrable aspect of bona fide in creating rights for claiming a fee by the service provider is a strong point with this principle and a priority over the Good Samaritan Law. Manuscript profile
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  3 - Certificate of Incompatibility based on Mutual Consent and Its Enforcement in Conformity with Jurisprudence and Positive Laws
  Leila Sadat  Asadi
  Abstract: Mutual consent divorce is one major cause behind issuing certificate of incompatibility that upon the very consent, the court is free to avoid entering into the nature of the dispute. The family law, ratified in 2012, while stipulating a time span for issuing More

  Abstract: Mutual consent divorce is one major cause behind issuing certificate of incompatibility that upon the very consent, the court is free to avoid entering into the nature of the dispute. The family law, ratified in 2012, while stipulating a time span for issuing certificate of incompatibility based on mutual consent, has conditioned its enforcement to the request by the husband. Therefore, a single request by the wife cannot be legally sufficient for the enforcement of the law. Such a preference is synonymous with spoiling the financial rights of the wife and this makes the wife’s will in mutual consent divorce ineffective. There is also ambiguity in the nature of divorce based on mutual consent and the type of divorce contract, which this paper intends to study. Manuscript profile
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  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
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  5 - Fundamentals of Timely Obligation Enforcement in Islamic and Iranian Laws
  
  In our legal system, the “Timely Obligation Enforcement”, as the first guarantee to protect the parties’ rights against violation of a contract, cannot meet the community’s legal and economic demands since the obligee is obliged to make a request and since changes have More

  In our legal system, the “Timely Obligation Enforcement”, as the first guarantee to protect the parties’ rights against violation of a contract, cannot meet the community’s legal and economic demands since the obligee is obliged to make a request and since changes have occurred in the legal fundamentals as well as social and economic conditions. Law is the collection of rules for life in the society and it cannot be indifferent to the needs and demands of the life. Therefore, it is a need to be farsighted enough to understand the time requirements so that good and bad acts play important roles in enacting, interpreting and enforcing the rules of law. On this basis, our legal system should take steps in tandem with international documents and advanced legal systems in the world in terms of enacting and enforcing the Timely Obligation Enforcement, and accordingly, accept parallel nature of mechanisms for defense against violation of contracts. The solution for access to this option in our legal system lies in making Timely Obligation Enforcement optional by the obligee. Admission of this option to our legal system is not contradictory with jurisprudential history and traditional legal backbone of the society. Furthermore, due to gradual development of this principle in our legal system and the history of theorization in Islamic law, and by virtue of dynamic factors in Islamic jurisprudence such as “independent reasoning”, “principle of no harm”, and “fundamentals of rationality”, it is compatible with Islamic and Iranian legal fundamentals. Manuscript profile
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  6 - Mortgage of Jointly Owned Property in the Jurisprudence of Five Religious Schools of Law and in Iranian Law
  Saeed  Farsad
  Abstract: Mortgage of jointly owned property (indivisum) is permissible according to Imamiyah, Maliki, Shafi’i, and Hanbali (except Hanafi) schools of Law because it is an instance of the rule of dominion. This is because conclusion of the mortgage contract does not mea More

  Abstract: Mortgage of jointly owned property (indivisum) is permissible according to Imamiyah, Maliki, Shafi’i, and Hanbali (except Hanafi) schools of Law because it is an instance of the rule of dominion. This is because conclusion of the mortgage contract does not mean possession of the jointly owned property. It is clear that submission of the jointly owned property to the mortgagee, in cases where it requires possession of the shares of the other partners, requires obtaining their consent. In cases where the mortgager submits the property to the mortgagee without the consent of the other partners, he shall be considered legally responsible for that. However, in cases where the submission of property means evacuation, the submission of the property does not mean possession of the shares of other partners, thus according to the jurisprudence of the above-said schools of law it does not need their consent for evacuation. This paper intends to study these issues in the jurisprudence of the abovementioned five schools of law and in the Iranian law. Manuscript profile