Rasool Bahrampoori; Javad Khodadadi
Abstract
Validity of penalty clause in monetary obligations has always been a controversial issue in the Iranian legal system. Due to the exposure of institutions such as the Constitutional Council and the Expediency Discernment Council to the damage of late payment, despite the adoption of laws such as the Code ...
Read More
Validity of penalty clause in monetary obligations has always been a controversial issue in the Iranian legal system. Due to the exposure of institutions such as the Constitutional Council and the Expediency Discernment Council to the damage of late payment, despite the adoption of laws such as the Code of Civil Procedure this question still remains in the Iranian legal system and it is asked the parties can claim a sum in excess of the annual rate of the Central Bank as a fixed sum, based on the contractual terms? General Assembly of the Supreme Court's Unified Judicial Precedent No. 805 has considered the permission of this matter subject to its non-contradiction with the imperative laws and regulations and the present study with an analytical-descriptive method in order to answer above question, by examining evolutions regarding the damages of late payment in the Iranian legal system, state three jurisprudential, legal and economic analyzes and it has proved that accepting the validity of any amount of contractual obligation in monetary obligations can't be deduced not only from the text of the relevant laws and regulations but in addition to conflict with the law, has many adverse economic effects and exposes the agreement to the suspicion of usury.
Abbas Karimi; Mohammad Hadi Jvaherkalam
Abstract
Introduction Due to the high rate of inflation in Iran, which itself is caused by various factors, our legal system and judicial procedure has faced the problem of devaluation of money and how to compensate it for many years. To solve this problem, the legislator has limited and incomplete solutions ...
Read More
Introduction Due to the high rate of inflation in Iran, which itself is caused by various factors, our legal system and judicial procedure has faced the problem of devaluation of money and how to compensate it for many years. To solve this problem, the legislator has limited and incomplete solutions in Article 522. In order to compensate for the decrease in the value of money and Article 1082 BC. It has provided for the adjustment of Rail dowries. In particular, in the case where the sale is void due to the merits of the seller and the non-enforceability of the owner and the seller of the invoice must return the price to the buyer, how the seller undertakes to reject the price due to devaluation has always been a matter of debate. This problem becomes more acute when a few years have passed since the transaction and then it is discovered that the seller belongs to another and the owner of the transaction does not enforce it. In this case, the purchasing power of money and its value has decreased due to high inflation and the return of the same nominal value seems unfair. In particular, the buyer is deprived of the minimum interest of his money which is in the possession of the prying seller and he has benefited from it, because if the customer had invested his price in the bank, he would at least receive the profit from his participation at the rate of inflation rate, and it is possible that the profit on account of the participation would be more than the inflation rate. In addition, due to rising prices, the buyer will have to pay a much higher price to buy similar financial goods, and therefore, the idea of compensation is necessary. The vote of procedure No. 733 of the Supreme Court seeks to resolve these issues; But it itself adds to the doubts and ambiguities and has many shortcomings and flaws. Methodology In the present study, descriptive and analytical research methods have been used and the method of collecting information and data is library. Also, the issue has been analyzed from a jurisprudential, legal and judicial point of view. Results & Discussion Paper currencies are of a special nature today and, unlike gold and silver, are of no intrinsic value; they are only of credit value, and the banknote is the only representative of money. Therefore, the value of today's money is its purchasing power and its exchange power. According to this analysis, the debtor's debtor must return to the creditor the value equivalent of what he has received in order to fulfill his obligation, and the mere reimbursement of its nominal value, if the purchasing power of money has decreased, does not absolve him of liability. So, what he owes in addition to the nominal value of money in terms of inflation is not an excess of his debt, but the fulfillment of the principle of his commitment, the value of which is diminished and compensated for by an amount equal to the rate of inflation. Accordingly, the devaluation of the currency differs from that of usury, as well as the damages for late payment, and its compensation must be accepted as a general rule. Conclusion and Suggestions According to the provisions of the vote of Procedure No. 733 of the Supreme Court, the prying seller should simply return the price in terms of "devaluation" and is not responsible for the increase in property prices. The General Legal Department of the Judiciary also commented in 2015 that the devaluation of the price in the vote of procedure No. 733 is calculated based on the Central Bank's index. This is while was predicted compensating for the devaluation of money as a general rule, before the vote of procedure in Article 522. The only advantage of the Unity of Procedure vote is that the conditions set out in Article 522 are not necessary to compensate for the devaluation of the price. Of course, this innovation is not very noticeable, because the volatile bond must return the price according to the rule of iodine guarantee, and the condition of the claim stipulated in the mentioned article about the reduction of the value of the price is automatically eliminated. In addition, "damages resulting from price increases", which were the main differences between Branches 3 and 11 of the Court of Appeals of West Azerbaijan Province, in the unanimous decision of the procedure has been compensated for the reduction of money laundering and thus, demanding price differences and daily prices. The prying scales are out of the scope of the vote. Therefore, in order to compensate for the difference between the contractual price in terms of inflation rate and the current day price, the general rules of coercive guarantee and Article 391 BC must be applied to the general rules. It turns out that the existing rules make the said damage compensable, because the buyer is deprived of having a seller by the invalidity of the sale, and this is a certain benefit to the detriment of custom, and therefore, the loss agent must compensate the said loss. The criterion for calculating the amount of compensable loss is basically the same, that is, the difference between the price and the price of the day should be calculated and paid according to the seller; however, conventional predictions of individuals and special conditions of the seller must also be considered. Therefore, it is suggested that the legislature of Article 522. Corrects and considers the devaluation of money as absolute and even without the conditions stipulated in this article. Also, the judicial procedure considers the damages caused by the increase in prices to be compensable based on the findings of the present research.
