نوع مقاله : علمی پژوهشی
نویسندگان
1 دانشیار حقوق خصوصی، گروه حقوق خصوصی، دانشکده معارف اسلامی و حقوق، دانشگاه امام صادق علیه السلام، تهران، ایران.
2 دکتری حقوق خصوصی، دانشکده معارف اسلامی و حقوق، دانشگاه امام صادق علیه السلام، تهران، ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
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”;
کلیدواژه‌ها [English]
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