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A comparative study of the nature of legal relations assumed in the provision of another contract in the laws of Iran and England | ||
| پژوهشنامه حقوق تطبیقی | ||
| Article 2, Volume 8, Issue 1 - Serial Number 13, April 2024, Pages 46-27 PDF (548.54 K) | ||
| Document Type: Original Article | ||
| DOI: 10.22080/lps.2023.25065.1477 | ||
| Authors | ||
| Seyyed Mostafa Sa’adat Mostafavi1; Atefe Zabihi* 2 | ||
| 1Associate Professor of Private Law, Department of Private Law, Faculty of Islamic Studies and Law, Imam Sadiq University, Tehran, Iran. | ||
| 2Ph.D. of private Law, Department of Private Law, Faculty of Islamic Studies and Law, Imam sadiq University , Tehran, Iran. | ||
| Receive Date: 03 March 2023, Revise Date: 10 July 2023, Accept Date: 12 August 2023 | ||
| Abstract | ||
| Based on the general rules of contracts, contractual obligations create based on the intention and will of the parties and the content of the agreement; However, in some cases, the legislator does not observe this rule and he assumes that there is a contractual relationship between the parties, contrary to the real will of the parties; and he replaces the real nature with a contractual nature, and he imposes the effects of the second nature on the first. The present study aims to explain the nature and extent of this practical procedure of the legislator. Based on this, the authors have examined the examples of legal relations witch the legislator assumed as another contract, so that by using the descriptive-analytical method, authers could get a rule to identify them in the legal system of Iran and England. In English law, examples of this presumption are similar to collateral contract, good faith and legal fiction. On the other hand, its examples in the law of Iran should be considered such as apparent representation, coercive suretyship, etc. The comparison of the mentioned institutions can lead to providing a clear Criterion of this practical rule of the legislator. Finally, it was concluded that the examples of domestic law are consistent with the structure of Usool-based Hokumat rule, and on the other hand, despite the similarities of this concept with the collateral contract and the good faith in English law, their nature should be considered different. But although the legal fiction is generally used in the field of non-contractual relations and it is less used in the contractual field in the English legal system (both in the legal literature and in practice); it is similar to Hokmi contract, and the logical relationship between the two can be described as “absolute general and specific”; | ||
| Keywords | ||
| real contract; hokumat; legal fiction; collateral contract; good faith | ||
| References | ||
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Aameli Karaki, Ali (1414), Jami al-Maqased, Qom: Al-ul-Bayt[In َArabic] Adamas, John, Brown Esward, Roger (1376), Analysis of contract law, translated by Majid Pourastad, Qom: Madyan. [In Persian] Adl, Mustafa (1373), Civil Rights, Qazvin: Bahrul Uloom. [In Persian] Ansari, Morteza (1419), Faraed al-Usul, Qom: Islamic Thought Forum. [In َArabic] Appellate Committee. (2007), Opinions Of The Lords Of Appeal For Judgment In The Cause, House Of Lords. Asghari Aghmashedi, Aboui, Hamidreza (2007), "Good faith in concluding a contract in British and Iranian law", Private Law Thoughts, Vol. 12. [In Persian] Bahrani, Youssef (1405), al-Hadaaiq al-Nadrah, Qom: Islami. [In َArabic] Boroujerdi-Abdeh, Mohammad (1380), Civil Rights, Tehran: Ganj Danesh. [In Persian] Busch, D. Macgregor, L. (2007), Apparent Authority In: Scots Law, The Edinburgh Law Review. Del Mar, M. (2015), Legal Fictions and Legal Change in the Common Law Tradition, University of London, Springer International Publishing Switzerland. Delshad Maarif, Ebrahim (2008), "The Nature and Effect of Legal Fiction", Private Law Studies, Vol. 4. [In Persian] Duxbury, Robert (1377), a review of contract law in England, translated by Hossein Mirmohammad Sadeghi, Tehran: Lawmaker. [In Persian] Ebrahimi, Yahya (2014), a comparative study of the theory of good faith in contract law, Tehran: Shahrdanesh. [In Persian] Emami, Hassan (1374), Civil Rights, Tehran: Islamia. [In Persian] Gillies, P. (1988), Concise contract law, Sydney: Federation Press. Halli, Jafar (1408), shraye-Ul eslam in Halal and Haram Issues, Qom: Ismailian. [In َArabic] Helli, Hasan (1413), Qavaaed al-Ahkam, Qom: Islami. [In َArabic] Hoshyar, Alireza, Hoshyar, Mohammadreza (2019), Jurisprudential Reflections on Article 944 of the Civil Code of Iran, Jurisprudential and Principles Essays, No. 21. [In Persian] Jafari Langroudi, Mohammad Jaafar (1391), Legal Encyclopaedia, Tehran: Ganj Danesh. [In Persian] Jafari-Tabar, Hassan (1388), The interpretive philosophy of law, Tehran: Publication. [In Persian] Katouzian, Nasser (1375), Family Civil Rights, Tehran: Bazarche Kitab. [In Persian] Katouzian, Nasser (1378), Civil Rights: Certain Contracts, Tehran: Sahami Publishing. [In Persian] Katouzian, Nasser (2010), Proof and Evidence, Tehran: Mizan Publishing. [In Persian] Koleini, Mohammad (1407),Al- Kafi, Tehran: Islamiyya publication. [In َArabic] Mohseni, Hassan (1385), "The principle of good faith in Iranian law with a comparative study", Journal of Comparative Law, Vol. 1. [In Persian] Mousavi Khomeini, Ruhollah (1418), Revision of Principles, Tehran: Imam Khomeini's Works Publication. [In Persian] Muzaffar, Mohammad Reza (1375), Principles of Fiqh, Qom: Ismailian. [In َArabic] Najafi, Mohammad Hassan (Bita), Jawaherul -Kalam, Beirut: Ihya Al-Torath al-Arabi. [In َArabic] Najoomian, Hossein (1366), Legislation and Finance Basics, Mashhad: Astan Quds Research Foundation. [In Persian] Nayini, Mohammad Hossein (1352), Ajud Al-Thartahat, Qom: Mataaba Al-Irfan. [In َArabic] Olomi Yazdi, Hamidreza, Babazadeh, Babak (1389), "Contract interpretation methods in the legal system of Iran and England", Public Law Research Quarterly, Vol. 29. [In Persian] Ostadi, Mona (2007), Theory of Apparent Representation, Master's Thesis of Kashan University. [In Persian] Raf Ane (1386), English contract law rules from the perspective of judicial procedure, translated by Mahdavi Mousavi, Tehran: Mizan. [In Persian] Rahpaik, Hassan (1378), Civil Rights: Certain Contracts, Tehran: Khorsandi. [In Persian] Saadat Mostafawi, Mostafa (2013), jurisprudential and legal review of the establishment of without dismissal Advocacy, Rahnamon, numbers 9&10. [In Persian] Shephard Garland. David, Cockcroft, J. Polk McGehee, L. Porterfield, C. (1988), The American and English Encyclopedia of Law, London: Thompson Company, Vol. VII. Shirazi, Ali (1328), Ali's comment on Faraed al-Usul, bija. [In َArabic] Taleb Ahmadi, Habib, Inaughandani, Muhaddeh (2018), "Comparative study of lateral contract in British and Iranian law", Comparative Law Studies, Vol. 2. [In Persian] Tetley, W. (2004), Good Faith in Contract: Particularly in the Contracts of Arbitration and Chartering, Mc Gill University. Weddebburn, K. W. (1959), Collateral Contracts, The Cambridge Law Journal, Vol.17. | ||
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