Univerisity of QomComparative Studies on Islamic and Western Law2476-42132120150522The Convention on International Sale of Goods, the Principles of European Contract LawThe Convention on International Sale of Goods, the Principles of European Contract Law128101910.22091/csiw.2015.1019FAMohammad BagherParsapour0000-0002-2309-7138Seyed MiladHosseiniAhadShahiJournal Article20140422There are different methods of compensating the promisee for the breach of obligation under the Shiite Jurisprudence, the Iranian Law, and some important international commercial mechanisms. These should be distinguished from preventive measures for avoiding obligation breach. The remedies stated in the Iranian Legal System and also the mechanisms mentioned above could regularly be categorized as “common remedies” and “special remedies.’ By common remedies one means those that have been set forth in the international mechanisms and the Iranian Law, such as requiring specific performance of an obligation. On the other hand, special remedies are those that have been laid down explicitly by international mechanisms and have not yet been incorporated into the Iranian Legal System, for instance the reduction in the price of goods. In addition, in some cases, several remedies arise as a result of the breach of contractual obligation which, regardless of their legal or contractual origin, some consistent ones could be implemented simultaneously. A majority of important international mechanisms such as the Convention on International Sale of Goods, the Principles of European Contract Law and still some others, have explicitly recognized the general rule of the cumulativeness of remedies for promisees. These are different from their Iranian counterparts. However, the approaches taken by the above mechanisms are not turned down by the Iranian Civil Code, as their content could be inferred from the wholeness and integrity of the mentioned law. The convincing reason here would lead us to agree with the cumulative remedies as the following in the Iranian legal system: the right to claim payment for delay in contract performance with the right to rescind the contract or the right to specific performance and also the cumulation of the right to claim non-performance compensation with the right to rescind the contract. <br /> There are different methods of compensating the promisee for the breach of obligation under the Shiite Jurisprudence, the Iranian Law, and some important international commercial mechanisms. These should be distinguished from preventive measures for avoiding obligation breach. The remedies stated in the Iranian Legal System and also the mechanisms mentioned above could regularly be categorized as “common remedies” and “special remedies.’ By common remedies one means those that have been set forth in the international mechanisms and the Iranian Law, such as requiring specific performance of an obligation. On the other hand, special remedies are those that have been laid down explicitly by international mechanisms and have not yet been incorporated into the Iranian Legal System, for instance the reduction in the price of goods. In addition, in some cases, several remedies arise as a result of the breach of contractual obligation which, regardless of their legal or contractual origin, some consistent ones could be implemented simultaneously. A majority of important international mechanisms such as the Convention on International Sale of Goods, the Principles of European Contract Law and still some others, have explicitly recognized the general rule of the cumulativeness of remedies for promisees. These are different from their Iranian counterparts. However, the approaches taken by the above mechanisms are not turned down by the Iranian Civil Code, as their content could be inferred from the wholeness and integrity of the mentioned law. The convincing reason here would lead us to agree with the cumulative remedies as the following in the Iranian legal system: the right to claim payment for delay in contract performance with the right to rescind the contract or the right to specific performance and also the cumulation of the right to claim non-performance compensation with the right to rescind the contract. <br /> https://csiw.qom.ac.ir/article_1019_dd1a18aacbd1c3f53c59fc8e368e4e36.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42132120150522A Comparative Study on the Nature of International Oil Buybacks and the Islamic ContractsA Comparative Study on the Nature of International Oil Buybacks and the Islamic Contracts2956102010.22091/csiw.2015.1020FAFathollahRahimiMir Shahbiz 'ShafeJournal Article20150106As the primary means of attracting foreign investment, international oil buybacks are consistent with the Iranian Law. Despite the criticisms available, they have been the financing source of the oil industry in Iran. It has been the legal basis of the interactive relationship between Iran and the oil company investors for almost two decades. The legal structure developed gradually, so today it is being unveiled as its new generation, dubbed as the Iranian petroleum contract. In this way, the Iranian legislature has prescribed both exploration and development meticulously, so that with changes in its content, it can receive benefits at the time when the country needs foreign investment especially in the shared oil fields. It will receive benefit with more use of external resources in order to exploit oil resources, particularly in the field of mutual benefit and the difficulty of financing. This paper is an attempt to examine this subject matter in an analytical way. It is an attempt to show the strengths and weaknesses of the oil buyback contracts in each of their generations and offer an applied research on the rise and appearance of the deformation and development of buyback processes in the context of the Iranian Legislature. Specifically, it wants to explain factors affecting development of the international oil contracts and describe the reasons for the recourses, the application and use of this method of signing contracts.As the primary means of attracting foreign investment, international oil buybacks are consistent with the Iranian Law. Despite the criticisms available, they have been the financing source of the oil industry in Iran. It has been the legal basis of the interactive relationship between Iran and the oil company investors for almost two decades. The legal structure developed gradually, so today it is being unveiled as its new generation, dubbed as the Iranian petroleum contract. In this way, the Iranian legislature has prescribed both exploration and development meticulously, so that with changes in its content, it can receive benefits at the time when the country needs foreign investment especially in the shared oil fields. It will receive benefit with more use of external resources in order to exploit oil resources, particularly in the field of mutual benefit and the difficulty of financing. This paper is an attempt to examine this subject matter in an analytical way. It is an attempt to show the strengths and weaknesses of the oil buyback contracts in each of their generations and offer an applied research on the rise and appearance of the deformation and development of buyback processes in the context of the Iranian Legislature. Specifically, it wants to explain factors affecting development of the international oil contracts and describe the reasons for the recourses, the application and use of this method of signing contracts.https://csiw.qom.ac.ir/article_1020_4d26d7d88f081540a7c56c2a94ded47c.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42132120150522The Concept of Ownership and its Transfer time in the Shiite Jurisprudence, Iranian and English lawThe Concept of Ownership and its Transfer time in the Shiite Jurisprudence, Iranian and English law5780102110.22091/csiw.2015.1021FAMajidSarbaziannullSoheilaRanjbariJournal Article20140903Ownership is a permanent right whereby one can allocate to himself some property in compliance with the laws and regulations, and can receive its benefits. This is the most inclusive right that humans can have on some property. It has three distinctive features: exclusivity, absoluteness, and permanency. The transfer of ownership is an important issue as it determines when the effects of the ownership take place. In some legal systems, the transfer of ownership is determined based on the type of transaction. In the Shiite Jurisprudence and the Iranian Law, the transfer of ownership in all types of sales is determined based on the concluding time of the contract. However, based on the type of transaction, this transfer of ownership is different in the English Legal System. It seems that the decision to transfer of the ownership at the time of signing the sales contract, regardless of the type of sale, is more appropriate and is more justifiable theoretically. This is the approach that has been taken in the Shiite Jurisprudence and the Iranian Law. <br /> Ownership is a permanent right whereby one can allocate to himself some property in compliance with the laws and regulations, and can receive its benefits. This is the most inclusive right that humans can have on some property. It has three distinctive features: exclusivity, absoluteness, and permanency. The transfer of ownership is an important issue as it determines when the effects of the ownership take place. In some legal systems, the transfer of ownership is determined based on the type of transaction. In the Shiite Jurisprudence and the Iranian Law, the transfer of ownership in all types of sales is determined based on the concluding time of the contract. However, based on the type of transaction, this transfer of ownership is different in the English Legal System. It seems that the decision to transfer of the ownership at the time of signing the sales contract, regardless of the type of sale, is more appropriate and is more justifiable theoretically. This is the approach that has been taken in the Shiite Jurisprudence and the Iranian Law. <br /> https://csiw.qom.ac.ir/article_1021_51ac205750e7aa3497241f34423a2e6c.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42132120150522Probation before Judgment in the Islamic Jurisprudence, the Iranian Law and the United States LawProbation before Judgment in the Islamic Jurisprudence, the Iranian Law and the United States Law81108102210.22091/csiw.2015.1022FASadeghSalimiMohammadaliKananiJournal Article20140601Probation before judgment is one of the new establishments of the Islamic Criminal Code and in its legal system that fails to have any legislative background in Iran. In this new establishment, we find a specific approach towards individuals who have committed some minor crimes, and the legislator has predicted the possibility of suspending their sentence for the sake of accommodating them with social norms and preventing the re-commitment of the criminal acts in case of necessary conditions. Probation before judgment has been established based on the principle of individualizing of punishments and is part of the institutions of pardon for the offenders. In the present text, we study the fundamentals and the domains of probation before judgment, its formatives, and substantial conditions and abolition of probation before judgment inthe Islamic Jurisprudence, the Iranian Law, and the United States Code.Probation before judgment is one of the new establishments of the Islamic Criminal Code and in its legal system that fails to have any legislative background in Iran. In this new establishment, we find a specific approach towards individuals who have committed some minor crimes, and the legislator has predicted the possibility of suspending their sentence for the sake of accommodating them with social norms and preventing the re-commitment of the criminal acts in case of necessary conditions. Probation before judgment has been established based on the principle of individualizing of punishments and is part of the institutions of pardon for the offenders. In the present text, we study the fundamentals and the domains of probation before judgment, its formatives, and substantial conditions and abolition of probation before judgment inthe Islamic Jurisprudence, the Iranian Law, and the United States Code.https://csiw.qom.ac.ir/article_1022_3487385628edef38b98a6a075daae14f.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42132120150522The Approach of Legal Systems in Dealing with Invasion of Information Privacy in Social NetworksThe Approach of Legal Systems in Dealing with Invasion of Information Privacy in Social Networks109134102310.22091/csiw.2015.1023FAEbrahimAbdipur0000-0001-6340-9733Journal Article20140701Invasion of information privacy is among the important legal issues that provided by social networks. In this article, we study the approach taken by legal systems in dealing with this issue and in the related subjects. Then,we analyze their rules and their solutions for the civil liability action about variant instances of this misconduct. Although the legal systems in support of the injured party have made significant progress in defining the realm of the invasion of privacy and in determining the requirements and elements of the civil liability, the results of this study show that the tort law has not been able to cover all issues related to the violations of information privacy in avoiding conflicts with constitutional rights such as freedom of expression and freedom of information, hence, for achieve to optimal and comprehensive solutions they needs to develop in this area. <br /> Invasion of information privacy is among the important legal issues that provided by social networks. In this article, we study the approach taken by legal systems in dealing with this issue and in the related subjects. Then,we analyze their rules and their solutions for the civil liability action about variant instances of this misconduct. Although the legal systems in support of the injured party have made significant progress in defining the realm of the invasion of privacy and in determining the requirements and elements of the civil liability, the results of this study show that the tort law has not been able to cover all issues related to the violations of information privacy in avoiding conflicts with constitutional rights such as freedom of expression and freedom of information, hence, for achieve to optimal and comprehensive solutions they needs to develop in this area. <br /> https://csiw.qom.ac.ir/article_1023_7469229ed0134e1bc94c1100d218d153.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42132120150522The Legal Stance of Environment in the Protection-based Islamic Attitudes and the Totalitarian Attitudes of the WestThe Legal Stance of Environment in the Protection-based Islamic Attitudes and the Totalitarian Attitudes of the West135158102410.22091/csiw.2015.1024FAAzizollahFahiminullJournal Article20141111Rooted in the Renaissance, a domination-based look at the nature was an approach taken by many Western intellectuals. Central idea to this approach was the elimination of god from the environment to rely on the fundamentals of humanism. Authors such as Freud and Nietzsche noted this approach. Some others like Linwhait came to the conclusion that the religious ideas are the sources of environmental degradation, while Jews and Christians opposed this anthropocentric approach. Contrary to this approach, there stands an Islamic perspective that is based on the revelation from god as it is reflected in the Holy Qur'an. This attitude has a respectful look at the environment. In Islamic resources there is a god-centered belief that regards the environment as an object of protection in the hands of the believers. The Islamic approach prohibits any damage to the nature. <br /> Rooted in the Renaissance, a domination-based look at the nature was an approach taken by many Western intellectuals. Central idea to this approach was the elimination of god from the environment to rely on the fundamentals of humanism. Authors such as Freud and Nietzsche noted this approach. Some others like Linwhait came to the conclusion that the religious ideas are the sources of environmental degradation, while Jews and Christians opposed this anthropocentric approach. Contrary to this approach, there stands an Islamic perspective that is based on the revelation from god as it is reflected in the Holy Qur'an. This attitude has a respectful look at the environment. In Islamic resources there is a god-centered belief that regards the environment as an object of protection in the hands of the believers. The Islamic approach prohibits any damage to the nature. <br /> https://csiw.qom.ac.ir/article_1024_514d0b77f2383b2c618374bb71f27fc3.pdfUniverisity of QomComparative Studies on Islamic and Western Law2476-42132120150522A Legal and Jurisprudential Analysis of the Role of Sex Change on the Quality of the Marriage Contract and its ConsequencesA Legal and Jurisprudential Analysis of the Role of Sex Change on the Quality of the Marriage Contract and its Consequences159178102510.22091/csiw.2015.1025FAReza HosseinGandomkarJournal Article20140429Marriage is a type of contract that allows one's spouse to take advantage of his or her partner in a legitimate way. It is one important contract in the field of jurisprudence and law that has various consequences and functions. Establishing a family, general and specific advantage that each party takes from his or her spouse, custody of children, alimony, and dowry are among the implications of the contract. These all show the importance of the concept of <em>jus cogens</em> in this contract. Additionally, ethics, ethnology, and religious regulations have their own parts in the contract. One of the most important and challenging issues that has resulted in numerous legal concerns is sex change. This challenge has never been observed before and can happen to any spouse. Our main concern in this regard is regardless of the legitimacy of the sex reassignment therapy, what impact this operation has on the marriage contract itself and on the consequences resulting from this sex change, such as alimony and the custody of children. This article makes an attempt to provide answers to these questions.Marriage is a type of contract that allows one's spouse to take advantage of his or her partner in a legitimate way. It is one important contract in the field of jurisprudence and law that has various consequences and functions. Establishing a family, general and specific advantage that each party takes from his or her spouse, custody of children, alimony, and dowry are among the implications of the contract. These all show the importance of the concept of <em>jus cogens</em> in this contract. Additionally, ethics, ethnology, and religious regulations have their own parts in the contract. One of the most important and challenging issues that has resulted in numerous legal concerns is sex change. This challenge has never been observed before and can happen to any spouse. Our main concern in this regard is regardless of the legitimacy of the sex reassignment therapy, what impact this operation has on the marriage contract itself and on the consequences resulting from this sex change, such as alimony and the custody of children. This article makes an attempt to provide answers to these questions.https://csiw.qom.ac.ir/article_1025_34059e40fa40020e97d822195e202d14.pdf