The Encyclopedia of Comparative Jurisprudence and Law

The division of proprietary rights into real rights and personal rights originated in Roman law, entered French law, and was subsequently introduced into Iranian law through the translation of French legal texts. Although the Iranian Civil Code does not explicitly refer to this classification, the structure and organization of its provisions clearly demonstrate that a significant portion of property law is based upon this distinction. Despite criticisms questioning the comprehensiveness of this classification and attempts to subsume one category within the other, the traditional distinction continues to retain its validity. Nevertheless, developments in modern law, particularly the expansion of intangible and intellectual rights, as well as the need to harmonize legal concepts with the foundations of Iranian law, necessitate a reconsideration of the original definitions adopted from French law. It should be noted that the classification of proprietary rights into real rights and personal rights constitutes one of the most important traditional and classical legal categorizations. In legal literature concerning property law, this classification is generally regarded as one of the principal frameworks and encompasses numerous subsidiary categories. Various legal interests held by individuals in relation to property—such as usufruct rights, easement rights, and a tenant’s rights over leased property in Iranian law—are among the extensive issues derived from this classification. In other words, the division of proprietary rights into real rights and personal rights is among the most fundamental subjects of civil law and one of the most significant achievements of Romano-Germanic legal systems. This classification plays a crucial role not only in explaining the nature of legal relationships among individuals but also in producing extensive legal consequences in the fields of ownership, contracts, civil liability, security interests, enforcement of judgments, and property registration systems. A real right constitutes a direct and immediate legal power over property that is enforceable against all persons, whereas a personal right establishes an obligatory relationship between a creditor and a debtor and is effective only between the parties to the legal relationship. Although this distinction has traditionally been accepted in most legal systems, economic developments, the expansion of modern financial institutions, and the growth of intellectual property rights have raised new challenges regarding the scope and effectiveness of this classification. Using a descriptive-analytical methodology and a theoretical approach, the present study examines the philosophical, historical, and legal foundations of the distinction between real rights and personal rights, as well as the legal consequences arising from this distinction within the Iranian legal system. The findings indicate that this distinction remains one of the fundamental pillars of private law and continues to produce significant legal effects concerning the right to follow property, priority rights, the legal protection of individual rights, and the transfer of proprietary rights. Nevertheless, the emergence of certain modern legal institutions has, in some instances, blurred the traditional boundary between real rights and personal rights. Consequently, a reexamination of the theoretical foundations of this classification and its adaptation to contemporary legal needs is an undeniable necessity.

The present study examines the status of the Best Evidence Rule within the legal systems of Iran and the United States using a descriptive-comparative approach. It should be noted that different legal systems have established various rules governing evidence in order to ensure the discovery of truth and the administration of justice. One of the most important of these rules in the common law system is the Best Evidence Rule, which emphasizes the necessity of presenting the most authentic and reliable available evidence to prove the contents of a writing, document, or data record. This rule was developed to prevent distortion of facts, reduce the likelihood of forgery and error, and enhance judicial confidence in the contents of documents. Today, it occupies a prominent position in the law of evidence, particularly in the United States legal system. In contrast, although Iranian law does not recognize an independent doctrine specifically referred to as the Best Evidence Rule, many provisions concerning official and ordinary documents, the requirement to present original documents, rules governing denial, doubt, and allegations of forgery, as well as regulations related to electronic evidence, reflect an implicit acceptance of the underlying principles and objectives of this rule within the Iranian legal system. The present research employs a descriptive-analytical method and a comparative approach to examine the status, foundations, scope, and implications of the Best Evidence Rule in the legal systems of the United States and Iran. The findings indicate that U.S. law, through the codification of independent and coherent provisions within the framework of the Federal Rules of Evidence, has established a clear structure for the application of this rule. In contrast, Iranian law pursues similar objectives through a collection of dispersed legal provisions. Furthermore, developments in modern information technologies and the widespread use of electronic documents have shifted the traditional concept of the Best Evidence Rule from an emphasis on the physical original document toward contemporary criteria such as authenticity, integrity, and the reliability of data. Accordingly, it appears that the adoption of independent regulations in Iranian law, inspired by the experiences of advanced legal systems, could enhance the coherence, transparency, and efficiency of the law of evidence.

The Istisnaʿ contract, as one of the significant instruments in Islamic commercial jurisprudence and Islamic finance, has assumed an increasingly prominent role in legal and economic systems in recent years. This study was conducted with the aim of comparatively analyzing the juristic and legal nature of the Istisnaʿ contract within the Iranian legal system and examining its economic functions. Within this framework, the theoretical and jurisprudential foundations of the contract were first explained based on authoritative Persian, Arabic, and comparative sources. Subsequently, employing a descriptive–analytical method and content analysis of legal documents and previous studies, the essential elements, conditions, juristic disagreements, and legal foundations of the contract were examined, and its economic principles and practical functions were analyzed. The findings indicate that despite certain differences of opinion within Islamic jurisprudence, Istisnaʿ enjoys a reliable jurisprudential foundation and is capable of being aligned with the general principles of contract law within the Iranian legal system. Furthermore, the economic analysis demonstrated that, by facilitating installment-based payments, reducing transaction costs, and improving liquidity management, this contract can serve as an effective financing instrument for projects. Comparative examination also reveals that countries such as Malaysia and Jordan have facilitated broader utilization of this contract through the adoption of precise implementing regulations. Finally, the study concludes that Istisnaʿ possesses considerable legal and economic capacities, and its further development in Iran requires more comprehensive regulations and greater standardization within the banking and contractual sectors.

Multimodal transport of goods in international trade, due to the simultaneous or successive integration of multiple modes of carriage, requires a coherent legal regime governing the liability of the transport operator. The principal challenge in this field is determining the legal basis and liability regime applicable under international multimodal transport documents. The governing international instruments, including the United Nations Convention on International Multimodal Transport of Goods (1980), the ICC Uniform Rules for a Combined Transport Document (1975), the UNCTAD/ICC Rules for Multimodal Transport Documents (1992), and the FIATA Multimodal Transport Bill of Lading, have each sought to strike a balance between the protection of consignors, the efficiency of international trade, and the limitation of the carrier's liability. In the law of international multimodal transport, three principal models have been discussed: the “uniform system,” the “network system,” and their modified forms. At present, modified versions of both the uniform and network liability systems have attracted considerable attention among parties involved in the transportation process within international multimodal transport documents. Adopting a descriptive–analytical approach, this article examines the presumed liability of the transport operator as the basis of liability and clarifies the operator's legal status. Accordingly, where loss of or damage to goods occurs during the period between receipt and delivery, liability is presumed to rest with the transport operator, who may be exonerated only by proving the existence of legally recognized grounds for exemption. This position, although contrary to the apparent wording of the International Multimodal Transport Convention, is supported by reference to the spirit underlying the Convention and established commercial practice. The resulting shift in the burden of proof reflects economic, professional, and protective considerations embedded in liability rules and constitutes an effective mechanism for the equitable allocation of risk.

The evolution of the juvenile criminal responsibility system in the Islamic Penal Code of 2013 (1392 AP) has taken a significant step toward criminological realism by recognizing the concept of "perceptual ignorance" in Article 91. This research aims to analyze the criminological foundations of the transition from chronological maturity to cognitive maturity. In the traditional paradigm, reaching the age of Sharia-based maturity was considered a definitive presumption of full criminal responsibility. However, findings in modern criminology, particularly in the fields of neurocriminology and developmental psychology, indicate that the development of the brain's frontal lobe and the capacity for impulse control do not necessarily coincide with chronological age. Using a descriptive-analytical method, this paper addresses how perceptual ignorance can function as a mitigating or exempting factor for criminal responsibility in crimes subject to Hudud and Qisas. The research findings indicate that understanding the wrongfulness (Hurmat) and the nature of a crime are complex cognitive processes that may be impaired in adolescents, despite physical maturity due to psychological immaturity or environmental factors. From a clinical criminology perspective, mere abstract knowledge of an act's illegality does not equate to a profound perception of its consequences and criminal nature. Finally, this paper emphasizes that Article 91, by accepting doubt regarding the development and perfection of intellect (Kamal-e-Aql), has shifted Iran's criminal policy from an absolute retributive approach toward a gradual and differentiated criminal responsibility. Nevertheless, the primary challenge lies in judicial realism and the difficulty of objectifying the criteria for measuring cognitive maturity in forensic medicine.

Fraud upon the law, as one of the exceptions to the application of conflict-of-laws rules, has consistently created serious challenges in relations between the state of origin (whose law has been circumvented) and the destination state (whose law has been applied). Nevertheless, the legal status of the effects of such fraud in a “third state,” acting as the authority for the recognition and enforcement of foreign judgments, has received far less scholarly attention. Using a descriptive-analytical method, this article seeks to answer the question of how a judge in a third state should respond when confronted with acquired rights resulting from a fraudulent act. The findings indicate that the third state fluctuates between two competing imperatives: preserving the international validity of judgments and safeguarding international public policy in combating fraud. Although, according to the classical theory, fraud corrupts everything, within the jurisdiction of a third state there appears to be a tendency toward the relativity of the effects of fraud. In this regard, the present article proposes that the third state should adopt a differentiated approach by distinguishing between fraud directed against internationally mandatory rules and fraud directed against domestic laws. Furthermore, where an abuse of rights by the litigating parties is established, the third state should refrain from granting effect to acquired rights arising from fraud, in order to prevent its jurisdiction from becoming a safe haven for the legitimization of fraudulent acts.

Defects of consent refer to particular circumstances that undermine the validity or diminish the effectiveness of intention and consent, and consequently affect the validity of the contract itself. This study examines the examples and effects of defects of consent in Iran, England, and Egypt through a descriptive, analytical, and comparative method. The findings indicate that duress and mistake are recognized as the two principal defects of consent in all three legal systems under study. Fraudulent misrepresentation is explicitly recognized as a defect of consent in English and Egyptian law; however, in Iranian law, it may implicitly be regarded as a defect of consent. Undue influence is considered an independent category of defect of consent in English law, whereas in Iranian and Egyptian law some of its manifestations may be treated as forms of duress and therefore classified as defects of consent. The effect of duress in all three jurisdictions is the possibility of annulment. The general effect of mistake in English law is nullity, whereas in Iranian and Egyptian law a distinction must be drawn between different types and situations of mistake. Fraudulent misrepresentation is not formally categorized as a defect of consent in Iranian law; nevertheless, due to its close relationship with mistake, it substantively results in impairment of consent. The possibility of claiming damages in cases of fraudulent misrepresentation under English law, as well as the imposition of limitations on actions arising from defects of consent in Egyptian law, may constitute practical solutions capable of application within the Iranian legal system regarding defects of consent.

Divergent judicial opinions regarding the validity or invalidity of transferring interests in real property through either official deeds or private agreements have given rise to significant legal disputes before the courts. This issue is particularly important because some judges regard the execution of an official deed as the fundamental requirement for the transfer of real property interests and consider it an essential element of ownership validity, whereas others deem the existence of a private document sufficient for such transfers. Contemporary judicial practice faces a serious challenge due to the absence of a unifying precedent concerning the role of executing an official deed in the transfer of interests in real property. Nevertheless, resolving such disputes requires, in the first instance, recourse to statutory provisions. Consequently, the role of the Registration Law, particularly Articles 22, 46, 47, and 48, as well as the Law on Mandatory Official Registration of Transactions Involving Immovable Property—representing the most recent legislative intent—becomes highly significant. Accordingly, this study seeks to ascertain the governing legal rule primarily through statutory law and, where necessary, through authoritative Islamic jurisprudential sources and legal principles, provided that they are not contrary to Islamic law. Notwithstanding the foregoing, the examination undertaken in this thesis provides a key to understanding the validity or invalidity of transfers of interests in real property effected through either private documents or official deeds. This is especially important because legal scholars and doctrinal authorities have rarely engaged in a comprehensive analysis of this issue, and the theory of invalidity has never gained substantial acceptance. Moreover, general references to certain related matters have not been sufficient to prevent confusion and inconsistency within the courts.