https://jolt.ut.ac.ir/ Private Law en daily 1 Tue, 22 Sep 2020 00:00:00 +0330 Tue, 22 Sep 2020 00:00:00 +0330 https://jolt.ut.ac.ir/article_80277.html Under Iranian legal regime, investment of private sector including Iranian and foreign companies, in upstream oil and gas activities is only allowed through conclusion of contracts with National Iranian Oil Company (NIOC). As petroleum contracts could be divided into concessions, production sharing or service contracts and each also has its varieties, this question arisen whether Iranian law has allowed a specific form of contract or not. In this paper, with regard to governing laws and regulations we conclude that the legislator has not recommended any specific upstream contract and it vested selection of the appropriate forms of contract in Ministry of Petroleum which shall conclude upstream contracts based on legal conditions.    https://jolt.ut.ac.ir/article_77740.html In the revision of French Civil Code on February 10, 2016, a third type of duress was accepted, according to which it is an abuse of the status of dependence. In the emergence of this type, regardless of the human phenomenon, external events and conditions also play roles. The state of dependence may be economic, informational, technological, and psychological. This kind of duress is known as economic duress. However, our civil law does not state the issue of whether or not the abuse of the status quo is annexation to duress. However, efforts have been made by the doctrine to justify it which is not enough. Therefore, the fundamental question is whether the economic duress enshrined in French civil law can be accepted in our legal system. The authors of this paper concluded that in addition to the fact that there is no obstacle to the acceptance of this institution in our law, it is even considered as one of the gaps in our civil law, which is required to be considered in future revisions. https://jolt.ut.ac.ir/article_78845.html Determining the scope of the proprietor protection on the one hand and preventing potential misuse of this legal protection on the other hand with the aim of establishing a fair and equitable balance between the interests of the investor and the entrepreneur and the interests of competitors and the public Consumers in the market, are challenging trademark rights issues. This article, while emphasizing the need to restrict this right and the need to strike a reasonable balance between the interests of entrepreneurs and third parties, seeks to demonstrate through a comparative study along with an analysis of domestic and foreign case law, the design of a system of appropriate restrictions and exceptions. The most effective legal mechanism is to achieve this. The results of this review and analysis suggest that trademark law has a fundamental underlying principle, namely, the nullity of trademark exclusion. In pursuit of this fundamental principle, firstly, the legislative support business creation and prosperity by investors and entrepreneurs. Secondly, this protection should not prevent the proprietor competitors from doing business without justified reason. https://jolt.ut.ac.ir/article_78846.html Based on the type of debt due to be based on rial or foreign currencies and also due to be documented by cheque or not, the late payment damage is divided into four categories. Among them, the case of late payment compensation of foreign currency debts documented by cheque is ambiguous. On one hand, the late payment damage has been assigned absolutely in the code of “issuance of cheque” and on the other hand, the calculation method of this compensation which is based on the announced index of central bank cannot be applied to the cheques that have been issued with foreign currencies. There’s a judgment within which the drawer is sentenced to pay the late payment damage in the way that the sum of cheque is changed from a foreign currency to rial. As to review the judgment, in this article it’s proved with several reasons that there’s no legal basis in Iranian current legal status for the late payment compensation of foreign currency debts whether documented by cheque or not. https://jolt.ut.ac.ir/article_78331.html One of the most challenging topics in acquisition of person's real estates is the recognition of full and equal compensation right with the aim of balancing between expropriation and indemnities. In this article, with an analytical-comparative method in Iranian and British law, we response the question of whether full and equal compensation has been identified in these two systems? By what criteria can be maintained the balance between compensation and expropriation? In English law, by accepting to receive full and equal compensation right, it is determined by open market value. Therefore, compulsory occurrence of acquisition, illegal and immoral use by the owner and price increase resulting from legal objectives are not effective. In addition, if the property does not have a market value, an equivalence reinstatement is provided. In Iranian law, a fair value is a suitable criterion for perfect compensation, but the rules for determining it, are not precisely defined, and in addition, different laws have different criteria that may be in conflict with the perfect and equal compensation right. To sum up, accepting the principle of perfect and equal compensation, the lack of effect of the scheme and legal objectives of the acquiring authority and the actions of the owner after the realization of acquisition in compensation and determining the exact time of the assessment are proposed acquisition laws amendments. https://jolt.ut.ac.ir/article_76376.html In recent years, revival of small satellites, especially CubeSats, has attracted many private companies and startups to the new space Industry. Like any other activity, launching these cheap and popular satellites is a high-risk activity and may cause damages on the surface of the Earth, to aircraft in flight or in outer space. Due to surge in launching small satellites by private companies and startups, this study tries to find the conformity of the liability for damages caused by launching small satellites by the private sector with the requirements of Outer Space Treaty and the Liability Convention through examining these Treaties, the practice of States where there has been an increase in the private missions of Small Satellites, and the regulations of the Islamic Republic of Iran. https://jolt.ut.ac.ir/article_77882.html Classification societies are important and impressive entities in maritime industry which play significant roles in safety of maritime activities including carriage of goods and passengers. In spite of their roles and functions in maritime sphere, the analysis of their liabilities limits has been overlooked. Due to the surge of commercial relationships complexity and recurrence of accidents, more attention to the role and function of classification societies is being paid by injured parties.  Therefore, the injured parties have brought an action against them in order to recover the incurred loss and damage.  With regard to the importance of the classification societies and their various functions in different cases, various judicial systems have decided about the liability of these entities differently which causes the complexity of the liability regime governing them.   https://jolt.ut.ac.ir/article_78486.html Role of negligence in establishing the causal relationship is not limited to cases of indirect damages (causation), but in cases where several direct factors have played a role in the negligence, the factor, to which the damage is attributable, can be determined by negligence. Developments resulting from the adoption of the law on compulsory insurance for damages to third parties due to accidents caused by vehicles adopted in 1395 and the Islamic Penal Code adopted in 1392 and providing various criteria in the distribution of liability, the fundamental question arises as to the place of fault in distribution of liability in these cases. Comparing the answer to this question with the answer to the same question in the British legal system will lead to a comparison of Iran's legislative and judicial policy with the United Kingdom. Analysis of the relevant laws and regulations in both countries indicates that in cases where pedestrian action cut the causal link, driver liability would not arise but where both have a significant role in causing the accident, they will be equally responsible, and in cases where the driver is at fault and the pedestrian is not at fault, the driver will be responsible. https://jolt.ut.ac.ir/article_77345.html Nowadays, the implementation of principle of equilibrium in joint stock company is equal to the realization of maximum utility. However, the demands of shareholders and their differences to the structural shortcomings of a corporation, along with non-equilibrium partnership models have caused the accumulation of multiple economic actors in the form of corporations to optimize the exchange and distribution of ownership. In addition, contrary to the expected philosophy of establishing a company, the balance between the parties and the society should prevail. This analytical approach analyzes the relationship between the principle of equilibrium with the supply and modern rights of shareholders (compulsory buying and selling rights), the principle of equilibrium in the structure and limitations of policymakers and administrators, and also examines the appropriate model of responsibility doctrine for shareholders and managers. Hence, this paper aims to answer this question that how the conflict between the rights of a joint stock company and the principle of balance can be resolved. Moreover, the non-cooperative game restored the members and pillars to equilibrium. In this regard, this research, in light of analyzing and expressing the capabilities and shortcomings, will propose the expected reforms. https://jolt.ut.ac.ir/article_80007.html Capital market or stock exchange has been considered in different countries of the world and many laws and incentives have been set out for its improvement and to motivate people to enter it. Meanwhile, people or companies need a sense of trust to enter this market. They want to be confident that they can easily invest their capital and that all the issues and information they use to make a profit will be confidential. The principle of confidentiality of information in the capital market has been examined in Iranian law regarding stock exchange. This paper aims to examine the impact of confidential information disclosure on transactions and also the measures and sanctions set out by the legislator in this regard. https://jolt.ut.ac.ir/article_78485.html Fairness in the sphere of law, which is used, by a judge or an arbitrator, in resolving disputes, in general, refers to one of two concepts of "equity" or "ex aequo et bono". The first concept is a general principle of law, itself consists of three types with different kinds of functions, all three of which are legal norms and, in deciding a case, is considered as part of law, recourse to them often does not require consent of parties to a dispute. Depending on the type of defect in the norms, infra legem by providing an interpretation in accordance with existing facts, the function of moderation, praeter legem which through the filling of legal gaps, has a supplementary function and contra legem by abandoning the governing law when conflicting rules, plays the replacement role of legal rules. Despite the important role of principles of law in the settlement of disputes and its application in international law, this principle has not been addressed in domestic law. https://jolt.ut.ac.ir/article_77788.html According to the traditional approach to contract law, autonomy of will is considered as the main basis, and parties' agreements are considered as the law of parties in contractual relationship, and given that it is the result of the free will of parties, so it will be necessarily just and fair. Nevertheless, the autonomy of the will in unequal contractual relationships, in which one party is in a position of weakness, has unfair effects and in effect makes a contract an instrument for securing the interests and realizing goals of a powerful party. Hence, in French law, the need to consider the weaknesses and inequalities between parties in contractual relations led to the emergence of the theory of contractual solidarism which provides a social concept of the contract and, instead of establishing the law of contracts on the freedom and equality of parties, is based on the existing inequalities between parties. The emergence of this theory dates back to the late nineteenth century, but after a relatively long silent period, in the late 20th century this theory was restored and played an important role in the new reform of the French Civil Code in 2016. In this paper, by examining the various aspects of the theory of contractual solidarism in French law, we will examine the necessity of changing or at least modifying the principle of contractual freedom, as the main rule of the contract law, in the light of the theory of the theory of contractual solidarism. https://jolt.ut.ac.ir/article_77739.html The forum selection clause in international commercial contracts, which is also known as jurisdiction clause, is an agreement based on which the parties of maritime shipment of goods choose a forum the settle the disputes arising from the contract. The incorporation of such clauses in maritime bills of lading results in granting jurisdiction to a foreign court and deprivation of jurisdiction from an internal competent court. The proceedings in a foreign court, in many cases, lead to the application of governing law on the settlement of disputes and affect the carrier’s responsibilities. On the other hands, most of the international and national rules governing on the maritime shipments of goods are mandatory and the validity of foreign forum selection clause in maritime bills of lading has been doubted because of the inconsistency with public policy. Regardless of complying with the fundamental circumstances governing on the validity of contracts in the formation of jurisdiction agreements, the courts of different countries consider some criteria for the application of such clause based on their national legal system and they may also give no effect to the forum selection clause due to the forum non convenient or evasion of the law. However, https://jolt.ut.ac.ir/article_77934.html Undoubtedly, one of the most important concerns in lodging a petition and initiating a lawsuit is the scope of hearing within the limitations of the petition. Legitimacy, nature of rule and its limits seem to be important in order to clarify based on what criteria the scope of hearing is determined or limited. the scope of hearing within the limitations of the petition can be inferred from the spirit and letter of Civil Procedure and some jurisprudential guidelines. The findings show that observance of this imperative procedural rule is a must in all hearing stages and is subject to sanction. There are some exceptions on the subject of the scope of hearing within the limitations of the petition but, these exceptions must be interpreted minimally in favor of observance of this rule and other legal principles and rules including the Principle of Impartiality of Judges. The present descriptive-analytical research examines this rule and the limitations of the court’s authority in adding parts to or omitting parts of the petition and the lawsuit, on the basis of legal principles and jurisprudential guidelines and offers some suggestions. https://jolt.ut.ac.ir/article_78262.html The most important document to be used in any patent litigation is the patent itself which defines the patent right and determines its scope. The presumption of validity is a judicial presumption accepted in many countries. But the applicability of this presumption relies on factors like the patent registration system and the way the registration authority works. This article concerns with the necessity of applying this presumption in Iranian legal system. The library method is applied in this article mainly and some case studies are done too. Finally taking into account the two branches of Patents valid in Iran (patents issued under act of 1310 and those issued under the act of 1386) it concludes that this presumption should not be necessarily adopted in all Iranian courts according to the type of patents concerned because some are issued by a declaration system and others are issued by a substantive search system. and if this presumption is adopted the lawyers and judges should be so cautious . https://jolt.ut.ac.ir/article_79308.html Architectural works have been protected as one of the most important fields of art in international documents (such as Article 1, paragraph 2, of the Berne Convention) and the law of different countries (such as Article 7, paragraph 2 of the Law on the Protection of Authors, Writers and Artists of Iran). In practice, it faces several serious challenges such as analyzing the concept of the building, separating the original work (plan) from the building, and analyzing the element of originality. In the present article, we have tried to analyze the element of originality as one of the pillars of a work that can be supported in the field of architecture. The most important criteria of originality in architectural works can be called non-functional criterion, dissection criterion and absolute criterion. However, due to the lack of any of these criteria, there are also sub-criteria that can help the judge in this direction. The analysis of each of these main and sub-criteria ultimately leads us to the conclusion that there is no superior or absolute criterion. https://jolt.ut.ac.ir/article_80233.html In most juridical books and under “usurpation”, “retaliation” and “blood-money”, jurisprudents have spoken of the two institution of “perpetration” and “causation” The two have been included in laws as well. Concerning perpetration, causation, and types of perpetration …, many discussions have been made in juridical and legal books. Some scholars, however, are of the opinion that, since the terms “cause” and “the actual perpetrator” have not been used in the Quran and hadiths and there is controversy between jurisprudents about definitions and instances of the two terms, discussion about causation and perpetration is a superfluous and verbal one and what is of importance is attributing damage or crime to someone else, whether he is the actual perpetrator or cause. The present article studies and evaluates the scientific and practical differences which may be between the two institutions. Evidently, if it is proved that there are such differences then founding these two institution and discussing about them is a must. Otherwise, one has to accept the opinion of the author who consider the discussion about these both superfluous and the attribution damage or crime to pushy or criminal one necessary. https://jolt.ut.ac.ir/article_80820.html Regulators of standard-form contracts try to anticipate all the necessary terms and conditions, which are a set of business customs, in the sample contract form, but these efforts may not convince the parties. They have the right to attach the agreed terms and conditions, which do not exist in the sample form, to the text of the contract, or, if these terms are detailed, as attached clauses to the contract. They may also omit or replace some of the words and phrases in the sample contract. These authorities make it possible for conflicts to arise between the text of the standard-form contract and the supplementary phrases, which sometimes cannot be resolved without removing one of them. Also, if a word or phrase is removed from the standard-form contract, the question arises as to whether the parties simply wanted the deleted phrase not to be part of the agreement or sought a purpose beyond deletion. With the aim of achieving the mutual intention of the parties and by applying various interpretative rules, the judges resolve the conflict by preferring additional phrases and interpret the ambiguities of the remaining text of the standard-form contract by using the deleted words. https://jolt.ut.ac.ir/article_80821.html The land Registration system is always subject to mistakes due to human management that, constitute Systemic Errors and, in the event of a conflict with the rights of third parties, resulting in a claim for damages. UK law not only not doubted the responsibility of Land Registries; also a special legal regime has been recognized to compensate for damages caused by Systemic Errors.In Iranian law, this responsibility is in doubt. This research with an analytical and comparative approach has concluded that government responsibility in this area is based on the theory of guaranteeing the right to civil liability. In the UK, the principle is to prevent the invalidation of the registered owners and the possibility of claiming the price of the property by the victim.In Iran, despite the approach of the registration law to this order, the jurisprudence based on the general provisions of the Civil Code and the Islamic Penal Code does not provide appropriate protection to the owner of the registration. https://jolt.ut.ac.ir/article_80958.html Artificial intelligence (AI) and machine learning are creating a promising future in tech innovations. From early cancer detection apps to autonomous vehicles, possibilities seem to be endless. Yet, with such technology, harm is also bound to follow. In such instances, the issue of tort liability begs our attention. Who should bear reasonability in case of an accident? When is an injury foreseeable? Such questions in negligence law will require a different perspective when one is dealing with an accident arisen out of the implementation of AI. Should tort law take the route of products liability law? Or will traditional negligence law be sufficient? This article takes a bite at the current literature on autonomous vehicles and medical malpractice law and the challenges of assigning liability. It also offers a look into possible guiding principles for AI with a focus on national Iranian law. This article aims to provide a roadmap for further research in Iran on the intersection of torts and AI. https://jolt.ut.ac.ir/article_81173.html The trend of pollutant industries as a new and voluntary regulatory tool has been increased today by non-governmental regulations and its weaknesses in improving the environment, and the oil and gas industry is no exception. the aim of this study is to explain the environmental issues of petroleum companies as one of the most environmental and environmental issues that the companies are fully independent or in cooperation with the government in order to regulate their activities from the environmental point of view. In addition, the measures taken by international and international law, government and other stakeholders in the support and leadership of the companies will be mentioned. The research findings indicate that petroleum companies will be able to improve the environment and oil industry in the event of acceptance of responsibility and the use of self - regulatory instruments as well as an observer such as the industrial community that meets the company's activities in accordance with the prepared rules. https://jolt.ut.ac.ir/article_81616.html Direct action is one of the reasons that legislators protect creditor rights. Following the 2016 amendments to the French Civil Code, direct action, which had long been accepted in French law, was explicitly anticipated in the Civil Code. Direct action does not have a clear legal status in Iranian law, but it has been analyzed by jurists in Egyptian and French law. The purpose of a comparative study of direct action in the first place is to clarify its theoretical aspect in Iranian law to be considered in the amendments to the Iranian Civil Code. Secondly, the practical aspect of this legal institution, as mentioned in Egyptian law, is important. Because the direct action mechanism can reduces the prolongation of the trial and, consequently, reduces the volume of litigation. In Iranian law, as in Egyptian and French law, the practical aspect of direct action can be provided by anticipating this legal institution in a lease, tax evasion lawsuits, alimony claim lawsuits, and other cases that are challenging for the judiciary. This will be an effective shortcut for both the beneficiary and the judiciary. https://jolt.ut.ac.ir/article_82837.html Obviously, inventions are important factors of economic development and welfare of society, however, they may cause damage to consumers due to defective or incomplete, during mass production or in the stage of their use or Factors to be produced. Irrespective of the responsibility of the producers of goods and services, the inventor can also be considered responsible for the harmful act due to his presence during the event of the loss. while examining their liability seems necessary. Due to the industrial and technical complexities in this field, it is difficult to apply the principles of contractual liability or traditional principles of non-contractual liability such as fault, and given the need to respect the interests of society and consumers of new inventions, a liability-based system is better. Purely, as is the case today with the production of defective goods, so be it with regard to inventors. At present, in Common law, lawsuits against inventors due to patent infringement are handled on the basis of liability for defective goods. In Imamiah jurisprudence, by invoking some jurisprudential rules such as "ALQONM", the burden of responsibility can be placed on the inventors without the need to prove guilt. https://jolt.ut.ac.ir/article_83229.html Video games are one of the modern embodiments of entertainment that their legal protection is usually carried out through means of copyright; this course of action however, cannot be considered flawless as it includes shortcomings that emanate from the very nature of this form of protection; as a result, defining a pervasive frame of protection for these intellectual phenomena must be sought through means of industrial property protection, including patents, industrial designs and trademark. In this work, by resorting to comparative analysis of United States and Iran’s legal systems, we concluded that, as opposed to current methods, effective protection of video games needs thorough exploitation of legal capacities in both branches of intellectual property law. Moreover, reserving some technical parts of video games as trade secrets is another possibility that can be very effective, provided that the exploitation of the game is not against confidentiality of those parts.