QUARTERLY OF LEGAL ENCYCLOPEDIAS
Year:2022 | Volume:5 | Issue:14|Papers Count:7

Introduction: the Research Center on the Iranian Law and Canon Although there are many examples in different countries regarding the collapse of high-rise buildings due to "structural failure", but the difference between them and the collapse of the Abadan Metropole building is due to a lack of coherent laws in the field of "conflict of interest management". In this research, the authors, with hearts full of sorrow, beg forgiveness from our fellow compatriots in Abadan and have tried, while identifying and describing three known types of conflict of interest that have existed in the processes involved in the implementation of this project, to present a report on the lengthy process and measures taken by the Eleventh to Thirteenth Governments and the procrastination and inability in the three parliamentary terms (ninth, tenth and eleventh) to pass a plan or bill addressing conflict management. It is finally concluded that until the governance and management structure of the country is not amended by means of codification of effective laws concerning conflict of interest, there is a possibility of recurrence of similar incidents. The focus on such measures as punishing the culprits and even providing compensation to the injured persons and the like is entirely an attempt to deal with symptoms are considered as the use of painkiller instead of structural therapies.

One of the indisputable legal-historical rules in the Roman legal system is the rule regarding price reduction, which is similar to the institution of arsh (the difference in financial value between a faultless and defective property paid to the customer) in the Islamic legal system. In this paper, an attempt has been made, by an analytical method, to elucidate both ancient legal rules by redefining them, in particular with regard to the general theory of arsh, and to conclude that both have a common goal, which is to compensate the injured party with the aim of preserving the contract. Moreover, by redefining the opinions of the great Islamic jurists, an attempt has been made to expand the definition of defect and conditions regarding the application of arsh so that by preserving the traditional Islamic structures, the law of compensation in Imami jurisprudence and Iranian law shall be in line with that of advanced western laws. The abovementioned remedy is devoted to defect, since in Imami jurisprudence and Iranian law the description of faultless property is more important than other features, and this has caused a difference in the effects. Therefore, in this article, we shall prove that in Imami jurisprudence and Iranian law, if in bilateral contracts the descriptions of goods delivered are not in conformity with that required by the contract, the party seeking compensation may receive an amount equal to what is not in conformity with the contract, exactly as we have in the price reduction rule.

In contractual relationships, it is often seen that one party to the contract has fulfilled his obligations or is ready to fulfill them, while the other party has delayed performing his obligations or refuses to fulfill them. Therefore, the passage of time is in favor of one side and against the other. In contract law in dealing with a party refusing to perform an obligation, mention is always made of such remedies as “ being compelled to perform the obligation, ” “ the delivery of the subject matter of the commitment to the court, ” “ termination” and “ claim for damages” . However, considering economic variables and the need for a quick reaction against these developments as well as the slowness and length of judicial proceedings, the above-mentioned safeguards do not have the necessary condition for efficiency and coordination with the economic necessities. Using the descriptive-analytical and library-document method, the present paper seeks to answer the question that in addition to the aforementioned remedies, what other legal institutions can be identified and applied that could be appropriate solutions considering the particular subject matter of commitment and the position of the parties. The findings of this study conclude that such legal institutions as “ direct substitution of a person who refuses to carry out his obligation” , “ automatic discharge of obligation” , “ maintenance or trust” and “ sale” can be other remedies that can be applied depending on the obligations and positions of the parties.

Jurists have attributed different natures to pre-sale contracts due to the fact that a sold property does not exist at the time the contract is entered into. In this study, the concept and nature of pre-sale are examined based on the intentions of the contractors and the theory of "an abstract sense of sale of property" in which there is a condition concerning construction of the building is suggested. According to this theory, a pre-sale contract is the sale of a specific unbuilt apartment, as well as a condition concerning giving concrete form to it (construction of a building). The relationship between the contract and the aforementioned condition is analyzed. As a result, it becomes clear that the effects of this contract are in accordance with the intentions of the parties and current customs, meeting the needs of today's society, including the immediate ownership of the purchaser over what already exists and will be completed later.

In this article, the claim initiated by the buyer of a mortgaged property against a seller to oblige him to release a mortgaged property and to draw up a notarial deed in his name is analyzed and revised in the judicial precedent with emphasis on procedural rules. The main question is whether the aforementioned claim is admissible despite the priority of the mortgagor's rights and the binding precedent No. 620 decided by the General Board of the Supreme Court or there is no permission to accept the aforementioned action. Assuming its acceptance, what bases and principles do the procedural rules governing the aforementioned claim in terms of the manner of initiation of a lawsuit, the party to the lawsuit, the manner of enforcement of judgment, and so on follow. Using the descriptive-analytical method and with the aim of establishing correct and consistent judicial precedent, correcting incorrect procedures, and by reviewing various judicial opinions, it is concluded that a claim to oblige a seller to release a mortgage and to draw up a notarial deed in the name of a buyer is not in conflict with the rights of the mortgagee and the content of biding precedent No. 620. This is so since at first the mortgagee's rights are satisfied by the fact that the mortgager repays his debt to him and then mortgage is released. When this is accomplished, the notarial deed is transferred in favor of the buyer. Therefore, there is no need for a mortgagee to be a party to a lawsuit or to issue a judgment to oblige him to release the mortgage. Moreover, enforcement of judgment is subject to the general rules of "compelling a purchaser to fulfill financial obligations".

In the EU Council Directive to Protect the Consumer, ratified in 1985, strict liability is accepted as the basis for civil liability of the producer. In Iranian law, there is disagreement among jurists regarding the basis for the legislator's choice in the Protection of Consumers’ Right Act, ratified in 2009. The bases for producer’ s liability in Article 2 of the aforementioned Act is not clear. Moreover, it is not clear whether in the production and distribution chain, the suppliers have joint liability or several liability, and to what extent such liability may be extinguished through exclusion or limitation of liability clauses. The results of the research show that civil liability in the EU Council Directive to Protect the Consumer, contrary to the general rule of liability, has been enshrined based on non-fault or strict liability. Thus, claiming damages from the producer and distributor does not require proof of fault.

One of the criteria for evaluating a fair trial is speed in court proceedings. In cases where a dispute concerns commercial matters, the speed of the court proceedings gains great significance. In some countries, commercial courts have been established to expedite court proceedings in cases dealing with commercial disputes, increasing the accuracy and quality of court proceedings. In the current age, when human progress in various fields, including commercial law is undergoing exponential growth, on the one hand disputes arising from interactions between different fields have become particularly complex and their settlement requires the application of numerous specialties, on the other hand, the court process is expensive and time-consuming. Since speed is an inherent feature of business, trial length in commercial proceedings can leads considerable financial loss to the trader. Therefore, in foreign investment, in choosing a country to invest in, businessmen, in addition to evaluating its security and economic stability, also pay close attention to the possibility of quick settlement of trade disputes. Therefore, overlooking this issue may greatly damage the country's economy. Thus, the present article seeks to analyze the concept of the principle of speed, examining the need to establish commercial courts and their role in commercial proceedings.