NAMEH-YE-MOFID
Year:2002 | Volume:8 | Issue:1 (29 LAW)|Papers Count:14

A contract restraint of trade is a contract by which a person agrees with the other person not to carry out any specific trade with a third person who is not a party to this contract in future. A contract in restraint of trade, in the absence of special justifying circumstances, is contrary to public order and the article 28 of the Constitution and thus not valid. A contract in restraint of trade can be valid if three conditions are satisfied: the contract must be reasonable, that is, it must be reasonable in the object of restraint and it scope must not exceed the time or area than is necessary to protect that interest. There must be a contracting interest meriting protection, that is, the interest must arise from the contractual relation between the parties and it must not be contrary to the public interest, that is, it must be useful, or at least, not cause any damage to public interests.

Introducing some major contemporary moral theories, I have discussed their implications for the legal systems. Human rights standards are mainly the result of the rights-based morality, which can be most successfully justified within the framework of the Kantian ethics. In contrast to the rights-based moralities, classic utilitarianism, by considering the idea of "greatest happiness for the greatest number of people" as the sole criterion for justifying a moral norm, would concentrate on public interest as the only legitimate basis for any legislation. Utilitarianism, then, may not justifiably embrace human rights standards as certain moral oriented norms. Because of concentrating on the question of personal character rather than rightness or wrongness of an action, virtue ethics will not be able to offer a justified and consistent theory of justice. Moreover, although one cannot deny the positive implication of virtue approach in educational policies, considering virtues, as criteria to distribute social resources would help spread hypocrisy, which itself is a vice. Despite the fact that ethics of care has developed in the context of feminism, it should not be necessarily considered as merely a feministic idea inapplicable to interpersonal relationships. It may play a significant role to complement the insufficiency of rights-based morality. In conclusion I have suggested that one single moral theory cannot successfully accommodate a sufficient and justified legal system, rather a combined approach is needed. Legal systems should mirror a combination of rights-based morality complemented by virtue ethics as well as ethics of care.

Theft is one of the property crimes and its subject is movable property belonging to another person. One of problems in actus reus of this crime is whether joint ownership of stolen property creates disorder in elements of actus reus of this crime? In this article considering the issue from legal as well as Islamic jurisprudence view andjudicial precedent of Iran and comparing it with the legal system of other countries, especially France, we conclude that theft of Joint property must be a crime. In addition to being in agreement with the logic and principle governing criminal law, this interpretation is more in accord with rules of pubic order.

Rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole. This paper is to put forward such an analysis and theory of rights, that is, rights as overriding I reasons over utilitarian justifications. To this end, the author refers to two kinds of argument against utilitarian background justification: the pluralistic argument and the argument from the right to moral independence. Dworkin argues that further analysis of the grounds that we have for accepting utilitarianism shows utility must yield to some right of moral independence. Utilitarianism owes its appeal to its egalitarian cast in the sense that in the calculation how best to fulfill most preferences overall, preferences of some people should not be weighed more than that of some other. To fulfill such an aim, utilitarianism is bound to accept the right to moral independence as a trump. In the second part of the paper the author replies to professor Hart's criticisms of his theory. In the preface, analyzing the unifying precedent judgment No. 645 by the Iranian Supreme Court, attempts to indicate the necessity of dealing with theories of rights such as the Dworkin's theory of "rights as trumps".

This article discusses the loss of profit in Iranian law and the 1980 international sale of Goods Convention. After presenting the definition and kinds of loss of profit, the article first discusses this issue in Iranian law and by referring to general rules and 'principles like la dharar, waste (etlaf) and causation (tasbib) and wisdom tradition states that this kind of loss is recoverable. Then it refers to the different codes of Iran. Finally the article discusses the matter in convention and states some judicial decisions passed by reference to the convention and refers to some problems that aren't expressed in it and suggests some solution introduced by interpreters.

Discussing the human rights in its modern form is one of the most important characteristics of the contemporary era, in which the rights of women are of special importance. Removing all kinds' of legal sex discriminations in different aspects of legal human life, with an emphasis on the rights of women makes them the cornerstone of all regional and international decrees and pacts related to the rights of women. Defending women's financial rights including their enjoyment from legacy is a very important discussion on the rights of women. In this article, there is, at first, a comparative study on men vs. women legacy in divine and non-divine religions as well as great civilizations; then there is a survey of men and women legacy in Islam and Iran.The privileges and deprivation of men and women are compared in terms of their customs and religions. Finally, the average duties and financial privileges of both men and women are compared, and the rate of the manifestation of legal equality is evaluated in their legal systems and financial duties in the, laws of Iran and Islam.

This article examines matrimonial property regimes in Iran's and France's legal systems (that of France being one of the most sophisticated Western written legal systems). Iran's legal system, following Shi'a jurisprudence, provides for the principle of independence of the espouses in matters of property ownership, administration and disposition. This is among the most advanced legal institutions established by Islam fourteen centuries ago. In French legal system there exist various matrimonial regimes of separation and partnership of property. Two centuries ago, French woman was considered as minor after marriage and it was through laborious progress that she was granted more powers. But it is still true that her powers come smaller than those of man. We believe that man's presidency and wife's maintenance are mutual rights and obligations wife and husband. Man's presidency is the source of his duty to provide maintenance while the other source is wife's being pregnant. But in French legal system the expenses of life and the duty to maintenance are bilateral obligations. The main problem with independence matrimonial regime i.e. the only accepted regime in our legal system is the status of housewives after divorce which is to some extent solved through protections such as quantum meruit of the work done by wife in her husband's house (Art. 336 of Civil Code and Note 6(a) of the Expediency Council) and the institution of Nahlat ( obligatory grant) in Note 6(b) of the same council's resolution.