CIVIL LAW KNOWLEDGE
Year:2016 | Volume:5 | Issue:1 (9)|Papers Count:7

Terms of contract, like a private law, are binding on the contracting parties and none of the parties to a contract is allowed to alter, modify or amend the terms of contract without the consent of the other party, even though the law maker or judge cannot adjust the terms or conditions of the concluded contract. However, it is possible that unpredictable events occur in the course of performing the contract in a way that require the terms of that contract to be adjusted or modified in accordance with new desire of the contracting parties or their economic needs. This situation can be observed more in international contracts. Sometimes unexpected and unpredictable events may result in economic imbalance of contract in a manner that full performance of the terms of contract may bring about windfall profit for one of the contracting parties and bankruptcy for the other party. For this reason, parties to such contracts usually prefer to regulate such a situation in advance.In this research while we studied issues around "Hardship" clause through a descriptive - analytical method, and despite the fact that contracted terms remain intact as obligatory, changes in circumstances which impact he balance of benefits support the loser to invite the other party to refresh talks. Otherwise he is allowed to make arrangement addressing cancellation under special conditions.

The mortgaged property will be handed to the mortgager after seizure. Consequently, the mortgager may do transmissions on this property that result in its transfer. Does the owner have the right to do such occupations on the mortgaged property or not? If the answer is negative then what will enforce the prohibition? Invalidity or Lack of Influence? If the answer is positive, then, is the application of this right absolute or it is bounded to the rights of the mortgager? The answer to these questions lies in the dimension of the mortgager possession to the mortgaged property. The Iranian legislator declares the scope of this possession in the Articles 793 and 794 of the Civil Code. However, the Civil Code does not propose a clear scale for the issue. Article 793 suggests “loss” as the only legal obstacle to the mortgager to do so. At the meantime, Article 794 states that the “benefit” in the mortgageis an essential factor for the possession. Therefore, apparent contradiction between these two Articles and lack of a uniform scale in interpreting the terms of “loss” and “benefit” in the mentioned Articles, raise various and contradictory opinions among the judges of the courts and legal scholars. The present paper tries to find answers to the questions and to clarify the ambiguities of the era.

One of the main issues in the civil rights is the pre-emption. From the perspective of civil rights of Iran, one of the four causes of property ownership is the pre-emption whereby the pre-emptor is the owner of his participant’s share. As defined by Article 808 of the Civil Code, “Whenever the divisible immovable property is shared between two persons and one of them transfers his share to the third party in order to sell, the other partner has the right to give the price that the customer has paid and obtain the purchased share”. Therefore, the discussion of getting the pre-emption is one of the main subjects in the jurisprudence and the civil rights. Since pre-emption and rights like it is considered some right to its owner, the discussion of the nature of this right and its non-transferability to others is one of the interesting subjects. The subject that pre-emption and its right has the financial nature is a matter of the property topics. Therefore, what is discussed in the context of the properties is also considered here.In the following discussion, we conclude that pre-emption right is one of the financial rights which are forcibly and optionally non-transferable, but we are restricted in range of the voluntary transmissions because the preemption right is related to the ownership principle of the immovable property that is transferred for consequential damages and it can be separately and independently transferred to another person. This distinguishes it from other financial rights. It should be noted that the current research has been performed in form of the library research method.

Inheritance and possessory will be two fundamental and important at the civil law in all legal system. And any person is at approach with both of them; whether in live or after death for legal personality of legacy and its administration.At this article author make an effort demonstrate nature of these two main legal subjects and explain essay their connection with them. However in generally concept and expression of lawyer is often that inheritance and possessory are two independent and irrelevant matters which known obligatory rules and mandatory statement that any agreement for them are lawless and irreligious they link that principally the person will (heir to crown or heir presumptive and testator) have not any effect in inheritance and legacy system.Author links over religious and legal texts about this two subjects approach to present this hypothesis and prove it that the subjects of this two legal systems are the first right in legacy and right give it to other person in family or party third and the cusses of them keep in countenance and administration the person right at inheritance and possessory will be within the limits of obligatory religious rules and imperative law.Thereby I think over this two legal and religious systems are so close relev.

Following formalities and rules of procedures are primary requirements of right in the judiciary system which guarantee the principles of Civil Procedure and stabilize the judiciary process. The Formalities must be determined by legislator to avoid putting its burden on the shoulders of the judge and exposing the parties to judicial tyranny.Although the period of grace is provided in our legal system in Art.277 and Art 652 of the Civil Code as a Substantive law, its procedure of applying has not been determined correctly and comprehensively neither in civil code, nor civil procedure code and other acts such as Enforcement Procedure of Monetary Condemnation Law.Anyway, this approach is neglected in our judicial system and is required to be investigated.

Abestention right in marriage is one of the legal rights for the wife which is recognized in Shia Jurisprudence and Civil Law which means that in case of due marriage portion the wife can refrain from her duties beyond the husband until receive the whole of marriage portion. The matter which this article attempts to deal with, is whether, despite the husband's insolvency of paying the marriage portion, the wife still has a lien.Hereof, three theories of the total Islamic jurists decisions, have inferred (extinction of lien theory, non-extinction of lien theory, and the differentiation theory between knowledge and ignorance of the wife regarding the husband's insolvency). Although, Article 1085 of the Civil Law and No.708 of Supreme Court Precedent are in accordance with the second view, which is famous Shia Jurisprudence, but this research, has considered the third idea as justice and fairness, because of the action rule and authentication of the implicit extinction of lien for the wife who is aware of the insolvency of husband, and according to some contemporary Jurisprudence, believe that the first paying of installment in case of ignorance of wife while the court of justice judge on Payment by Instalment of Marriage Portion, extinction of lien is more compatible with religion, family Interest and community.

For decades, the approach of legal systems towards private arbitration in public law has been characterized by a certain mistrust. Initially, this attitude may somehow have been linked to the traditional defining of arbitration as a method of dispute resolution between private parties and as a mechanism for pursuing a balance between the conflicts of parties’ demands. However during the time the arbitration has been changed to an instrument of judiciary. This requires the arbitrators to decide not only the private issues but also the public issues that link with private matters. In this article what is important is the issue of enforcement and annulment of arbitration awards that relates to a public law matter. The public interests so are factors that shall be precisely considered to prevent the situation in which courts rejecting award in reviewing stage due to the fact that the public policy aspects of the case are not complied. In this article we analysis the competence of the court in reviewing the awards and its power to refuse from enforcement or annul an award.