Jurisprudence and private law

Abstract After developments in urban life and industrialization of manufacturing sector that came to the disadvantage of consumers, supporting consumer rights has always been a concern of lawmakers. The obscurity of jurisprudential fundamentals attesting to support of consumer rights, uncertainty over lack of establishing justice between the producer and consumer, and fears over disappointment of producers stand as major obstacles to support this group.
This paper is devoted to application of evidences on liability against deception in line with supporting the consumers. These evidences help the person sustaining loss or damage in consequence of deceit to resort to liability against deception. As a result, a consumer with no knowledge of product specifications and deprived of required information on product use due to complexity of the manufacturing process, who has sustained loss or damage, shall receive due support. There are three advantages to consumer’s resorting to evidences on liability against deception: a) In addition to contractual relationships, these evidences are applicable to non-contractual relationships as well; b) They are invokable to losses such as destruction of property and infringement of rights; c) According to the evidences, deceit, knowingly or unknowingly, is a liability to consumers.
Resorting to evidences on liability against deception paves the path for joint liability between producers and the chain of vendors which turns to be in favor of the consumer.

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.

Abstract : Understanding the fundamentals of ownability of a property is important in distinguishing property from non-property. Since jurists of Imamiyah jurisprudence have no consensus on definition of ownability of a property and the Civil Law has not specified what the property is by definition, the importance of understanding the fundamentals of ownability of a property has further come to light. This paper intends to find a unified criterion for validity of ownability of a property, analyze the criteria set by the jurists, and investigate the strengths and weak points of the expressed criteria. The criterion thus achieved helps distinguishing property from non-property in doubtful cases. Such power of distinction helps us in various issues since ownability is a matter of credibility and the right understanding of ownability and its attachments depends upon acquiring knowledge on credit concepts and its specifications. Therefore, this paper points to some instances of credits. The author of this paper is of the opinion that the major criterion for understanding ownability is the rational approach toward this subject and other criteria expressed are either problematic or abundant. The paper has finally discussed available solutions in case doubts appear in conventional and legal ownability of a property.

Abstract 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.

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.

Abstract The priority in subscription of new shares is the same as priority given to the previous shareholders that is under certain legal procedures and nature. The source of priority in Iranian law is law and articles of association in American law. In both legal systems, priority is a transactable right. The transfer of this right is carried out in the stock market or outside the market and based on restrictions the shareholders face in transfer of their shares. Like movable properties, priority can be attached by the third party and it can be sold on tender without formalities and immediately after the approval of the court. In Iranian law, priority is a peremptory norm and a non-abrogatable right of the former business partners. According to the articles of association, their rights cannot be denied although denying their priority is within the discretion and authority of extraordinary general assembly, which should be well-justified and non-forceable. The procedures must be brought in the reports of the board of directors and the official inspectors for proper decision making. In the United States of America’s law, however, the priority is a complementary principle and the shareholders will enjoy priority in case it has already been mentioned in the articles of association of the bank or financial institutions, otherwise, they will have no priority in subscription for new shares or for capital increase unless the articles of association is amended.