NAMEH-YE-MOFID
Year:2010 | Volume:15 | Issue:2 (76 LAW)|Papers Count:12

According to Article 337 of the Iranian Civil Code, "Each of the seller and buyer is entitled to restrain from delivering the thing sold or the price until the other party is ready to deliver it".The right that the parties of contract of sale can avoid delivering his/her subject of obligation until receiving his/her own consideration of subject of obligation is called the right of withdrawal.Contrary to what some Iranian civil law commentators believe that the above mentioned provision is against the rule and limited to where explicitly provided by the law, the dominant view in lmamiya figh and Iranian law sees it as being according to the rule and nature of contracts of exchange and thus extending to contracts other than that of sale.On the other hand, in some fighi and legal writings, the right of withdrawal is considered to go beyond the framework of exchange contracts covering all involuntary exchanges.In the present article the authors have tried to draw an even broader scope for the right of withdrawal through proposing a general theory of right of withdrawal in mutual obligations based on the reciprocity of the two obligations and their equality in a way that it goes beyond the relationship between the two obligations which in turn involves all cases that obligations are mutual.

If someone defending a claim says: "I have paid the creditor the credit," though the confession is not literally compound, its meaning consists of two parts: one expressly indicated which is "paying the debt" and the other implicit meaning which is "being in debt". Now the question is whether in such cases - Conceptual complex confession- the speaker admits his debt and is liable to pay the debt, unless he proves to reject the creditors claim, or no confession to debt is made. In other words, is it required, in such cases, to accept divisibility or indivisibility of confession? Famous lmamite jurisprudents have asserted the divisibility of the confession. Yet, the famous theory is focused on in this article and it seems that the opinion is not accepted in Iranian Civil Code. One of the results of this research is that, considering the Civil Code, the legal principles and judicial precedents and some of the authentic jurisprudent opinions, the indivisibility of the confession is generally accepted and even no objection is seen in the lawyers' views and the case law. In French legal system as well as those of the Islamic countries, according to legal texts, the lawyers' opinions and also judicial precedents, the rule of the indivisibility of the confession is accepted and, with the exception of the rare cases, it is prevented to divide the confession to the detriment of the confessor. However, in the legal system of these countries, unlike that of Iran, there is a distinction between judicial and non-judicial confession and the indivisibility rule is limited to judicial confession and in non-judicial confession, decision on the (in) divisibility is left to the judge to be made according to the general rules of evidence.

Among the documents on contract law, the Principles of European Contract Law (PECL) are the best result of the endeavors for the unification of European law in the realm of contract law. After expiration of a short time from its publication, the PECL find a suitable place in Europe and outside the Continent. The Principles have two important features: they contain the European legal tradition as well as respond the needs of modern world in the area of contract law.The PECL do not bind the courts. They can only work by their force of persuasion. They are treated as soft law which was drafted and published by academics who are not members of political parties and governmental organs. However, the main purpose of the European Principles is to serve as a first draft of a part of a European Civil Code.The PECL may also perform a function similar to that of the American Restatement of the Law of Contract, which was published in its second edition in 1981. The Restatement is a non-binding body of rules which purport to state the Common Law of contracts of the United States. It offers its rules to courts and arbitrators which need help and advice. It is part of the lex mercatoria.

The transition from traditional to the modern law and the formation of legal modernity results from changes in their bases which in turn affects other elements of the legal order and at least as a historical and social reality in western societies, makes us familiar with the essential parameters of the evolution of the legal order. Also it helps us to know the place of religious legal order of Iran compared to the evolution of traditional to the modem law. This research, therefore, intends to demonstrate parameters of the modem law and to put light on the issue of how and in which field and through which changes, these parameters and characteristics are formed? On the other hand, according to the Western lawyers, the legal system of Islam is a traditional system. Does that mean that the religious legal system of Iran is foreign to the parameters of the modem legal system? If this is not so, then which parameter is refused by the Iranian system and which parameter is accepted? In its evolution the modem law has also been in crises. These crises have changed certain factors of the modem law and have brought divisions in the modem law itself (liberal modem law and social modem law). How much is the share of this division in the amount of parameters of legal modernity and in the range of accommodation of the Iranian legal system with the mentioned parameters.

Right to life is the most fundamental right of human beings. It has been noted and emphasized in some human rights instruments.Although we do not see the term "right to life" in Islamic literature, we can infer this basic right from Islamic sources because it has been strictly protected in the holy Qur'an and other texts. The holy Qur'an prohibited killing of children. The Committee on the Rights of the Child has identified four general principles as the object and purpose of the Convention on the Rights of the Child. One of these fundamental principles is "the right to life, survival and development of the child" (art. 6). This right relates to immunity from execution and the prohibition of abortion. Article 37 of the CRC provides that capital punishment shall not be imposed for offences committed by persons below 18 years old. States shall pursue the full implementation of this right and take appropriate measures to protect the life of children.

Diplomatic non-intervention is one of the manifestations of the principle of non-intervention which is considered as one of the basic principles of friendly relations among states. International law has made harmony between the interests of the sending and receiving state through recognizing immunities for diplomatic envoys and declaring their duty to respect the law and regulations of the receiving state and non-intervention in domestic affairs. Since the era of prophecy, Muslims have used diplomacy and political delegations to in spreading Islamic teachings and establishing international relations.This cultural-propagating principle doesn't deny the principle of nonintervention but rather embraces it as a basic principle.

This article demonstrates the falsity of two common statements through a historical analysis of the usage of the term "right". The statements are: 1. The issue of having a right is invented in modem period; 2. The Islamic culture is influenced in this regard by Western one.The article first shows that "right" was used by authors in medieval period in their works, and that, the concept of having a right does not depend on any particular culture or literature. Certainly, human beings adopted rules, however rudimentary, in the early stage of social life to prevent chaos in the society. One of the implications of having laws is creating the rights and duties. It is nonsense to say that there is a system of law in a society without any system of rights and duties.The sacred Islamic texts indicate that the word "(having a) right" was used at the beginning of Islam (in the 7th Cen.), that is, 700 years before western authors. This argument says that the discourse of rights and justice was important even from the first period of Islamic culture and literature. This discourse was not dependent on any other culture.

The Iranian Electronic commerce Act has accepted the formation of any evidence in the form of data message. Therefore, document, testimony, oath and confession are capable of being electronically formed. Notwithstanding this, the possibility of formation of evidence in the form of data message is different from the issue of presenting electronic evidence in courts. Electronic document can be presented to court by using the maintaining means of recording. Testimony must be physically presented in court, thus testimonies that are recordec in this means may only have a presumptive value. If a confession is presented by means of electronic instruments and in the form of online communication, it seems to be considered as a confession made in the court.