perAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959112article Hamed NabizadehLawyer.nabizadeh@gmail.com1Mustafa Abbasia@gmail.com2Khashayar Heydarianaa@gmail.com3PhD student in Private Law, Department of Law, Faculty of Humanities, Aras International Branch, Islamic Azad University, Aras, Iran.PhD student in Criminal Law and Criminology, Department of Law, Faculty of Humanities, Lahijan Branch, Islamic Azad University, Lahijan, Iran.PhD student in private law, Law Department, Faculty of Humanities, Kish International Branch, Islamic Azad University, Kish, Iran<p>According to the Prophetic tradition, Ghari contracts are invalid according to the five Islamic schools of thought. Iranian legal laws also consider Ghari contracts invalid, following the Prophetic tradition. Definitions from dictionary books will not solve the problem of gharar in jurisprudence and legal sciences; therefore, it is imperative to refer to jurisprudence books of the five schools of thought and legal sources. Finally, by examining the jurisprudential books of Islamic schools, we clearly understand that there is no precise definition of gharar, because there is no text in Shariah on the definition of gharar, and the criteria for its identification are left to the customs of the community. Unfortunately, a search of many jurisprudential books shows that not only is there no precise and correct definition of gharar, but sometimes there is no distinction between gharar and risky contracts. The following article seeks to explore and examine the definitions available in jurisprudential and legal books on gharar and risky contracts. The problems encountered in these definitions are examined and a diligent attempt is made to present a specific and practical criterion for the aforementioned issues.</p>http://ahrarlawjournal.ir/Article/51466Gharar Gharar contracts risky contracts contingent contracts compensation contracts necessary supply differential supplyperAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-09591328article Reza Jahanpanahj@gmail.com1 Master of Private Law, Department of Law, Faculty of Literature and Humanities, Gilan University, Rasht, Iran.<p>In contract law , the theory of trust is the opposite of the theory of will, and based on it , in many cases , the basis of a person,s obligation and responsibility is not his will , but the reasonable trust of the other party in the legal relationship. At different stages of the contract , it is difficult , and sometimes impossible , to be aware of all issues . In this situation , having honesty and lack of bad faith at all stages of the contract is a fundamental issue , which is ensured by good faith . Adherence to obligations , the obligation to behave fairly , the absence of malice and deceit , the achievement of justice , and the existence of order in contracts are the basis of the principle of good faith. The acceptance of fair treatment at various stages of the contract in common law and international documents indicates attention to this principle . Failure to comply with this principle entails performance guarantees and the damage caused must be compensated.But in the stages of negotiation , conclusion , implementation , and interpretation of certain matters, we also need another principle that can be relied upon when acting . In order to have a state of mind that is confident and free from doubt, and to determine tasks, acquire knowledge, and eliminate pride, one can seek help from the principle of trust. Reliance on the statements of the other party and the existing phenomena is possible depending on the circumstances and skills of the parties. The ruling that believers should refrain from suspecting each other's behavior and speech, and that they are permitted to suspect each other in transactions, refraining from deceiving someone who has trusted another, refraining from deceiving someone who has trusted another, preventing the increase of conflict and confrontation between the parties, the importance of security and speed in transactions, and the compatibility of such a principle with the will and desire of the parties are among the foundations for accepting this principle in law. In transactions where it is difficult to mention all the characteristics of the item being sold, or when the principle of soundness is relied upon, or when one of the parties to the transaction sees himself safe from deception and fraud through trust in the other party, the principle of trust helps the parties to the transaction in resolving disputes and preventing fraud. The right to terminate or invalidate the transaction and compensate the injured party for damages is one of the guarantees for the enforcement of violations of this legal-moral principle. The principle of trust and its compatibility with good faith, examining its status and role, and the necessity of paying attention to an issue that is explicitly raised in Imami jurisprudence, have been examined in this research.</p>http://ahrarlawjournal.ir/Article/51490Theory of will Trust theory Good faith Apparent authorityperAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-09593071articleMohammad Taati Sershakehlawyer.taati@gmail.com1Master of Private Law, Department of Law, Ahrar Institute of Higher Education, Rasht, Iran.<p>The present article examines the challenges of convergence and divergence in global private law, with a focus on the areas of contracts and civil liability. In the era of globalization, the increase in cross-border interactions and international trade has turned differences in legal, cultural, and economic systems into major challenges on the path to legal convergence. Using comparative methods and qualitative analysis, the differences between "common law" and "civil law" systems in the fields of contracts and civil liability are explored, and solutions for bridging these systems are proposed. Additionally, the role of international organizations such as UNIDROIT and CISG in legal convergence is analyzed. Finally, suggestions for future research on the impact of new technologies and the role of Islamic law and other non-Western legal systems in legal convergence are provided.</p>http://ahrarlawjournal.ir/Article/51491Legal convergence Legal divergence Global private law Comparative lawperAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-09597282article Valiollah Fallahfala@gmail.com1yasaman yaghobiyaghobiyasaman@yahoo.com2Master of Private Law, Law Department, Faculty of Humanities, Bandar Anzali Branch, Islamic Azad University, Bandar Anzali, Iran.Associate Professor of Educational Management, Department of Nursing, Shahid Beheshti School of Nursing and Midwifery, Guilan University of Medical Sciences, Rasht, Iran.<p>Insurance contracts and the obligations arising from them, in most legal systems, are subject to the law agreed upon by the contracting parties.This law is called the law of the intention of the parties. Today, the principle of the sovereignty of the will is considered and discussed in a social, not individualistic, sense. In fact, the aforementioned principle, which initially had a philosophical face and was related to the dignity of man and his natural rights, is now respected as a useful social tool and is limited wherever it conflicts with a higher interest. It is on this basis that it is well stated in the statement of the provisions of this principle: "Persons are free to enter into agreements with each other in any reasonable manner they wish and to determine their effects, unless the terms of their agreement are unlawful because they are contrary to law or public order or morality." Article 10 of the Civil Code also expresses the same content with a slight difference as follows: "Private contracts are enforceable against those who have concluded them, unless they are expressly contrary to the law." In addition, according to Iranian and American civil laws, insurance is a contract under which one party (the insurer) undertakes to compensate the other party (the insured) for the damage caused to him or to pay a certain amount in exchange for the payment of a sum or sums by the other party (the insured). The obligor is called the insurer, the party to the obligation is called the insurer, the amount that the insured pays to the insurer is called the premium, and what is insured is called the subject of insurance. Therefore, insurance contracts in Iranian and American laws have rules such as the principle of sovereignty of will, the principle governing contractual obligations, etc., which are considered as the rules governing insurance contracts. This research aims to take an effective and useful step in resolving challenges and differences of opinion by carefully examining the rules governing insurance contracts in Iran and the United States.</p>http://ahrarlawjournal.ir/Article/51492Governing Law Principle of the Rule of Will Insurance Contract Iran and America perAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-09598395articleZeynab Farajivekalatcoach@gmail.com1Master of Private Law, Law Department, Tabarestan Institute of Higher Education, Chalus, Iran.<p>If a transaction is conducted within the country and the check related to it is issued within the country, or if a check is issued without any transaction, and both parties to the contract are Iranian and residents of Iran, all legal actions related to it are governed by domestic laws, and there is no conflict of laws in this regard. However, if one of the parties is a foreign national or if the issuance of the check or the conclusion of the related contract occurs outside the country, due to the presence of a foreign element, a conflict of laws arises, and legal scholars have differing opinions regarding the rule for resolving this conflict. In this regard, the Geneva Convention on the Uniform Law for Bills of Exchange and Promissory Notes of 1931 exists, to which Iran has not yet acceded. In such cases, legal scholars, referring to Article 969 of the Civil Code, believe that the issuance of the check and the contract related to it are subject to the law of the place of issuance. However, there are different views on whether this law is mandatory or optional, with proponents of the mandatory view being more numerous. This issue is explicitly stated in Article 1 of the Check Law, which stipulates that checks issued for the bank that issued them, whether inside or outside of Iran, are considered enforceable documents. Based on the interpretation of this article, the legal status of Iranian checks issued, regardless of the place of issuance, nationality, and residence of the parties involved, endorsement, etc., is subject to Iranian laws. Therefore, for disputes related to Iranian checks, Iranian laws can be applied in all cases. However, for foreign checks issued by foreign banks, the situation is different. In this case, according to Article 969 of the Civil Code, checks issued abroad are the responsibility of foreign banks, and if the endorsement or guarantee of the check is carried out within Iran, it will be subject to Iranian laws. Otherwise, it will be governed by the laws of the place where the action occurred. This research uses a descriptive-analytical method to examine the rule for resolving conflicts regarding checks and promissory notes derived from the domestic legal sources of the country.</p>http://ahrarlawjournal.ir/Article/51493Check Promissory Note Law Iran Conflict of Laws EndorsementperAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-095996109articleSeyyed saleh Pishbinsaleh.law2023@gmail.com1Mehdi Rezvani Radm133@gmail.com2Master of Private Law, Department of Law, Faculty of Literature and Humanities, Guilan University, Rasht, Iran.Master of Private Law, Department of Law, Faculty of Literature and Humanities, Guilan University, Rasht, Iran.<p>Civil partnership is the most widely used form of partnership contract in Iran&rsquo;s banking system. Among the terms embedded within this contract is the stipulation of a fixed profit, a provision that has consistently provoked debate due to its perceived conflict with the Islamic prohibition of usury (riba). This study seeks to address the issue through a structured, library-based approach, presented in four main sections: introduction, general principles, the condition of profit and loss, and critiques with proposed solutions. Islamic jurists have not reached a consensus on this matter; while most uphold the validity of the contract itself, they regard the fixed profit stipulation as invalid. Based on the findings, it appears that such provisions, when included in civil partnership contracts within the banking sector, necessitate substantial legal and regulatory reform. Nonetheless, similar conditions may be considered valid in certain other partnership and non-partnership contracts.</p>http://ahrarlawjournal.ir/Article/51494Civil Partnership Islamic Jurisprudence Fixed Profit Partnership perAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959110130articleMojgan Talesh Mohammadimohammadi2017@gmail.com1Master of Private Law, Department of Law, Faculty of Literature and Humanities, Guilan University, Rasht, Iran.<p>Liquefied Natural Gas (LNG&sup1;), as an emerging and strategic energy source in the maritime transport industry, despite its economic and environmental advantages, can cause irreversible damage to marine ecosystems and navigation safety in the event of leakage. In Iranian law, LNG leakage from ships is regarded as a novel and complex issue in the realm of civil liability, which, due to legislative gaps, has raised numerous legal questions. This article aims to clarify the foundations and scope of shipowners&rsquo; liability in the event of LNG leakage and explores the conditions under which such liability may be mitigated or excluded&mdash;such as unforeseen technical defects despite adherence to inspection and maintenance protocols. Furthermore, the role of governmental authorities in compelling shipowners to bear the costs of environmental cleanup, even in the absence of direct fault, is critically analyzed. This study employs a descriptive-analytical method, drawing on statutory law, Islamic jurisprudential principles, and legal doctrines, and concludes by proposing practical solutions for enhancing the civil liability framework within Iran&rsquo;s maritime transport sector.</p>http://ahrarlawjournal.ir/Article/51495Civil liability LNG leakage shipowners environmental damage compensation Iranian maritime law perAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959131146articleseyed mahmood mehrinejad choobarifazel.mehrinezhad@gmail.com1Master of Private Law, Department of Law, Faculty of Literature and Humanities, Guilan University, Rasht, Iran.<p>Maritime arbitration serves as a critical mechanism for resolving complex international commercial disputes, playing a pivotal role in the global shipping industry. This research employs a comparative-analytical approach to examine the qualifications of arbitrators in two maritime arbitration systems: the London Maritime Arbitrators Association (LMAA) and the Iran Chamber of Commerce Arbitration Center (ICAC). The study focuses on the differences in arbitrator competency criteria and the factors influencing the validity and enforceability of issued awards. Findings reveal that the LMAA prioritizes practical experience in the maritime industry, arbitrator independence, and cost transparency through its non-institutional (ad hoc) approach, while the ICAC emphasizes academic credentials, compliance with domestic laws, and adherence to Islamic legal principles. These differences directly impact international acceptance: 85% of LMAA awards are enforced outside the UK, compared to only 40% for ICAC awards. The ICAC&rsquo;s centralized institutional structure, supervisory oversight, linguistic limitations, and non-accession to key international conventions (e.g., the Hamburg Rules 1978) pose enforcement challenges. In contrast, the LMAA&rsquo;s procedural flexibility, alignment with global standards, and arbitrator specialization solidify its status as a leading model. The study recommends that the ICAC enhance its competitiveness by reforming civil procedure laws, establishing specialized maritime arbitration panels, and acceding to international protocols.</p>http://ahrarlawjournal.ir/Article/51496LMAA Arbitration Jurisdiction IRAN The UK perAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959147160articleآرمان یعقوبی مقدم arman_yghb@yahoo.com1 kha123@gmail.com2Master of Private Law, Department of Law, Faculty of Law and Political Science, Allameh Tabataba’i University, Tehran, Iran.<p>Before the issuance of the unanimous decision No. 845 of the General Panel of the Supreme Court, there was a serious difference of opinion in the judicial procedure regarding the hearing or non-hearing of the auction cancellation lawsuit in general and also the instances of auction cancellation. The result of this difference of opinion led to the issuance of the aforementioned unanimous decision. In this article, we will examine the formal and substantive aspects of the auction cancellation lawsuit and criticize the unanimous decision issued.</p>http://ahrarlawjournal.ir/Article/51541Auction unanimous vote annulment judicial procedureperAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959161187articleZahra Heydariheidari.z1990@gmail.com1Master of Private Law, Department of Law, Ahrar Institute of Higher Education, Rasht, Iran.<p>This article uses an analytical-descriptive method to examine the jurisprudential and legal aspects of the wife's right to withhold alimony in Iran from the perspective of Imamiyya jurisprudence and Iranian law. According to Article 1085 of the Islamic Law, a wife may refuse to fulfill her obligations to her husband until the dowry is delivered to her, provided that her dowry is current, and this refusal will not constitute a waiver of the right to alimony. However, if the wife voluntarily refuses to fulfill her duties towards her husband before receiving the dowry, she cannot benefit from the ruling of Article 1085. Different opinions have been expressed in Imami jurisprudence regarding the right to retain a wife. In the sense that some have considered this right to be a mutual right for both parties and have considered its implementation to be bilateral. Some do not accept this right and believe that couples do not have such a right and that each spouse is obligated to fulfill their marital duties and obligations to each other. Some also believe that the submission and support of the wife is a right upon her, and the submission of the dowry is also a right upon the husband, so it is obligatory upon each of them to convey the right to its owner, and if one of the two refuses to fulfill his obligation, he has committed a sin. But with her disobedience, the right will not be revoked. However, it seems that this advantage is only for the wife and should not be allocated to the husband.</p>http://ahrarlawjournal.ir/Article/51542Dowry Alimony Spouse's Inheritance Obedience Marriage Right of Detention perAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959188203articleFatemeh Sharififatemehshrifiiii8@gmail.com1Master of Private Law, Department of Law, Faculty of Literature and Humanities, Guilan University, Rasht, Iran.<p>Nowadays, BOT contracts have gained popularity in many countries. This model is increasingly used for implementing large-scale and costly projects that require substantial budgets. It enables private sector participation in infrastructure and public projects without imposing a financial burden on the government. This method is considered one of the successful models of public-private partnerships for financing infrastructure projects. BOT (Build-Operate-Transfer) contracts are especially under development in maritime transport and port construction projects. Given the complexity of such contracts and the political sensitivities and legal ambiguities between Iran and the UK, this article examines the nature of BOT contracts and their economic and social impact. The study explores how this model can be a suitable opportunity for improving conditions in Iran&rsquo;s maritime transport and port sectors. It identifies the strengths, weaknesses, and associated risks of BOT contracts and provides recommendations to manage existing challenges. The ultimate goal is to create the necessary conditions for maximizing the economic potential in the maritime transport and port operation sectors.</p>http://ahrarlawjournal.ir/Article/51551Lease Maritime Transport Iran-UK Relations BOT ContractperAhrar Higher Education Instituteدوفصلنامه پژوهشنامه حقوق خصوصی احرار2821-27032821-27032025-0959204224articleseyyedeh maryam asadinejadmed88.asadinejad@gmail.com1Private Law Faculty Member, Law Department, Ahrar Institute of Technology and Higher Education, Rasht, Iran.<p>Medical errors are among the major challenges of healthcare systems, with extensive human, social, and legal consequences. This study aims to examine the perspectives of Iranian legal scholars regarding the legal liability of physicians in medical errors.The research employs a descriptive&ndash;analytical method, and data were collected through questionnaires and interviews with 400 legal experts.The findings indicate that most participants believe current Iranian laws concerning physicians&rsquo; liability lack clarity and effectiveness, necessitating revision and reform.Moreover, insufficient awareness among both physicians and patients about their legal rights and duties has increased legal disputes in the healthcare sector. The study concludes that promoting legal education for physicians, enacting comprehensive medical liability laws, and expanding professional liability insurance can significantly reduce medical errors and enhance public trust in the healthcare system.&nbsp;</p>http://ahrarlawjournal.ir/Article/51885Medical Error Physician LiabilityCivil Responsibility Criminal Responsibility Iranian Legal System