نامه مفید
سال:1388 | دوره: | شماره: |تعداد مقالات:8

Quasi- Contracts such as "undue payment", "negotiorum gestio" and "unjust enrichment" constitute one part of the "connection group" of "Extra Contractual Obligations" in the conflict of laws where the source of obligation is a voluntary profitable act. The growing importance of this branch of law is due to the expansion of international communications and determining "the proper law" for this connection group is possible by legally analyzing the nature and basis of each obligation. Unlike contractual obligations, these obligations are imposed by law, but their nature is different from delictual obligations so that they are derived from a voluntary profitable act which makes that party obtain unjust benefit at the other party's expense. So it is necessary to ascertain a proper law which has the closest and most substantial connection with the connecting factor.

One of the most important and controversial issues in nationality is the ways in which nationality may be acquired. One of the commonest of such ways is "by birth". Some countries confer their nationality on children born of parents who are nationals which is known as jus sanguinis rule. According to Article 976 of the Iranian Civil code only children who are born of Iranian fathers are considered as Iranian nationals. In 2007, Iranian parliament enacted a law to solve the problem of the nationality of children born of an Iranian mother and a foreign father and the Guardian Council affirmed it. In this article the author will examine the new law. The article will focus on the issue of whether this piece of legislation has developed the existing rules of nationality or not.

E-signature is an electronic data that is attached to a data message. As to its probative value, E-signature is divided into simple E-signature and secure E- signature. The main rule about E-signature is that E-signature has the same effects as handwritten signature.Another issue on digital signature is how to determine the attribution of a digital signature to a specific person. In this article we consider probative value of electronic signature and its definition.

Iran's Law of Electronic Commerce recognizes the option of lapse of right and provides for its application in electronic transactions but Islamic jurisprudence and Iranian law are not familiar with such an institution. So one is not certain on the special effects of Iran's Law of Electronic Commerce as to the option of the lapse of right. This article intends to examine these effects through analyzing some of the relevant articles. in the mentioned law.

When there is an ambiguous contract, it must be interpreted.For the purpose of correct interpretation of a contract, it is necessary to observe some rules and principles among which is ' Contra Proferentem Rule'. If the drafter (creator) of a contract also was the obligee of it or the composition of a contract (or clause) wasn' t related to one of the parties, in this case the mentioned rule to be used in the concept of ' preference of interpretation against obligee'. But if one of the parties draft the contract (a clause of it) and the other party accept it, in this case the ambiguity of the contract will be interpreted against the drafter (composer) whether he is the obligee or not. So in such a case, interpretation against the drafter will be superior to the interpretation against the obligee. Since the.issue has not attracted much attention in Iranian Law, this article will have it as the central point of study. Also the contra proferentem rule, in line with the protection of consumer rights, is to be used in the intrpretationof non-responsibility clauses in order to give them their proper and just sense.

In recent decades, some Muslim states and their political leaders made critical remarks about human rights norms. They claimed that Human rights instruments were adopted without the participation of Muslim States and therefore, the Universal Declaration of Human Rights should be revised and alternative declarations must be devised that are fully compatible with Islamic Sharia as well as their cultural traditions. In reaction, Western States and scholars asserted that Muslim States contributed in the formation of human rights system and now they make recourse to Islamic Sharia as an excuse to deprive Muslim societies of human rights standards.The author seeks to show that during six decades since the adoption of the Universal Declaration of Human Rights, Muslim States did not remain in the same position as alleged by competing theories. Although Muslim States were not involved in the codification and adoption of basic human rights instruments, the situation has drastically changed. It is argued that Muslim States have played a significant role in the development of Human Rights discourse, despite the fact that they were not notably involved in the codification and formation of human rights system.

World is approaching the 12th anniversary of the Chemical Weapons Convention's (CWC) entry into force. This Convention together with the NPT and Biological Weapons Convention form an important part of international law of armed conflict and disarmament The progressive development and codification of this branch of international law has created obligations for all States to criminalize, try and punish war criminals. Particularly, after the adoption of the Statute of International Criminal Court (ICC), States have demonstrated more readiness to incorporate this crime into their domestic legal systems. The use of chemical weapons in wartime is also among the crimes, which may fall within the jurisdiction of the ICC. Iran has not yet ratified the Statute of the ICC. Should it decide to accede, in the light of the principle of ' complementarity' and considering the rule of ' rejection of foreign dominance' or Nafy-e Sabil in Islam, it would much more need to take note of necessity of criminalization of the use of chemical weapons. Currently, the country is under obligation by the 1949 Geneva Conventions and the 1993 CWC to make use of such weapons criminalized, though has not yet done so. Furthermore, there is no conflict between its criminalization and the Islamic principles. There are even instances of prosecution and punishment of war criminals in the Islamic jurisprudence. Moreover, criminalization of the use of chemical weapons would support the strength of customary international law on the subject and the Iranian courts would have jurisdiction to prosecute criminals who may commit this crime in Iran.

In the French Civil Code, crime is one of the sources of obligations.With the commission of a crime, notwithstanding penal liability, obligations are created that are similar to civil obligations and have the same effects. Some of the French jurists think that pecuniary punishments also are similar to obligations. These punishments are penalty but another aspect of them is obligation that allows them to be analyzed in the law of obligations. This article examines crime from the point of view of the law of obligations in Iran and France.