Comparative Law Researches
Year:2018 | Volume:22 | Issue:1 (99)|Papers Count:7

Comparative advertising is one of the current methods of advertising goods and services. This method has been established Based on comparing products and services in the essential characteristics such as quality, raw materials, the effectiveness of the product or external elements such as price and warranty period. Comparison can be either explicit by mentioning the name and trademark of a competitor or it can only imply the comparison with other trademark. Different approaches have been adopted in different legal systems in relation to this phenomenon because on the one hand, comparative advertising can be effective in informing consumers and protecting their rights, and on the other hand it may overshadow the rights of other competitors. At first it was the French lawyers and their jurisprudence, that according to the general rules of civil liability and prohibition of misleading advertising Law, consider the comparative advertising as an example of unfair competition and so it was prohibited and punishable. However, eventually french Laws have been reformed and the this kind of advertising – by adapting some legal requirements-became legitimate. in European Union comparative advertising had a similar story and after the ban, eventually with the guidelines issued by the European authorities, in compliance with the limits and conditions set forth in the guidelines, was legitimate. In Iranian Law and Islamic jurisprudence, there is no specific rules on this matter, but according to the general rules of Islamic jurisprudence, comparative advertising can be accepted as a legitimate method of conduct.

Given the necessity for making incentive to behave optimally, as accepting new concepts and institutions are welcomed, it deserves revise classic institutions and when they do not meet new needs of society, they would be modified or substituted by other good institutions. The promise’s duty in enforcing promisor to perform his obligation in the case of breach and exceptional nature of termination of contract has been accepted in Iran’s law which does not have enough efficiency and it should be revised; because it prevent to induce promisee to optimally behave and to mitigate damage and sometimes places him in a deadlock that he cannot averse. Conversely, in German law, in the case of breaching contract by promisor, and after giving him a reasonable time by promisee, if the promisor does not perform his obligation, the plaintiff can terminate the contract or insist on performing contract. The reform of civil code of Iran in the manner that it would include accepting the termination of contract and specific performance together, could respond to society’ needs and meet individual’s legitimate and reasonable expectations.

Nowadays we can trace different types of legal regulative interactions when we are talking about all the relationship which is taking place-in part or whole-outside the territory of a nation-state. These communications are described by a group of the theorists Under title of "Transnational Law Theory". The theory of transnational law as a theory with not a long history, has raised many issues. the evaluation of the theorethical basis for the emergence of transnational law and its implications are two important issues in the realm of study of the theory of transnational law, which provides the scholars with the two theoretical foundations necessary in this regard. From the point of view of the theoretical foundations of the emergence of transnational law, it can be argued that transnational law has been influenced by two different factors, namely pluralism and universalism, both of which are the consequences of globalization. The theoretical foundations that explain how transnational law is conceptualized, can be regarded as the ones of the most recent theoretical achievements of law, which is an attempt to imprint the Patterns and Designs of transnational law. The richest and most powerful of these theoretical foundations can be considered in the school of legal positivism and legal sociology.

The globalization of economic exchanges has led to different ways of securing transactions, among which the collateral instrument that is the cause of American rights. Although major international exchanges are based on sample contracts, and in practice private international law is fading, the determination of the law governing the contract is still one of the legal concerns of international trade. The principle of the will to determine the law governing the contract is fully accepted. However, it is probable that the contract for the selection of the law will be postponed for various reasons. This has led to the establishment of the closest relationship to determining the law. And in the recent regulations, both within the European Union and in the US legal system, it is well-documented. The theory has grown to such an extent that it is sometimes regarded as exceptional to the principle of sovereignty of will. It is inevitable to set precise criteria for the abovementioned criteria, in particular in relation to the contractual certainty, which are discussed in the forthcoming article in the context of specific regulations in the field of bail-out transactions.

A person is liable for compensating damages caused by an object (e. g. building, animal, etc. ) which is in his/her possession if the that object is under his/her supervision. By objects, In the context of French civil law, it means every thing other than human being. According to Iranian Civil Liability Act, fault is the basis of civil liability. With respect to damages caused by destruction of building, the legislator takes the same viewpoint as well. This sort of liability is imposed on the guardian of building, who is actually the owner of the building as well, unless some one else occupies the given building. Although, some responsibilities are assigned to new occupant, In the law of France, the basis of civil liability for damages, incurred as the result of building destruction, is fault. According to the French Civil Code, Fault is also assumed to be the basis of liability of owners of animal while the owners are strictly considered liable for some sorts of damages within the Islamic Penal Code of Iran. Liability of the owners of animals is based on guardianship theory. in the law of France regarding the fault as the key presumption.

In order to prevent the consolidation of de facto authorities established in a territory following an unlawful use of force and/to contempt of rights of the involved peoples to self-determination, international law imposes obligations to third States. Treaties entered into with the de facto authorities established on such territories on matters concerning them must ensure the interests of the people under their jurisdiction. Otherwise, these states must expect that these treaty relations will be criticized and eventually be denounced by international and national courts. Of the same concern is the origin of the distinction that international law establishes between the different acts of the de facto authorities administering these territories. Administrative acts issued to safeguard the civil rights of the people within their jurisdiction will not be null and void unlike those that seek to allow the population to enjoy the benefits of international cooperation. This is difficult distinction to establish and implement.

Private contracts are void if they contradict public order but where should the courts look for “public order”? should courts only cite “public order’ when the order is arise from imperative acts or general legal principles? Or it can be derived from other sources like customs, social traditions, ethis and shari’a too? This paper will consider this debate in Iranian civil law and jurisprudence and in a comparative study it also have look on other legal systems, namely American, British and French legal systems. This paper concludes that the imperative Laws in a general sense (spirit and concepts behind laws and legal general policies and principles) should be considered source of “public order’ And a synthesis of imperative law and public order should be used instead of believing in independence of public order from imperative law. While ethics and sharia must be accepted as two independent controlling source for the principle of contractual freedom.