كليدواژه :
حقوق تطبيقي , بيع بين المللي , تسليم , انتقال مالكيت , انتقال ريسك , حقوق انگلستان , كنوانسيون وين
چكيده لاتين :
This paper confirms the existence of a common thread and a similarity in the nature of delivery in Iranian and English law which is compatible with the Vienna Convention. Delivery, whether physical or constructive, under these three laws is transfer of control of the goods to the buyer, which enables him to exercise his property rights. Before delivery the buyer may have ownership of the goods, but manifestations and consequences of his ownership, particularly with respect to a third party, come into effect by delivery. Transfer to property will not have any significant result when it has not been accompanied by delivery. Delivery, whether physical or constructive, provides the buyer with the possibility of exercising his rights as owner of the object of sale. Delivery takes place when the seller abandons his control over the goods and puts them in a situation in which the buyer can take control of them. In this way delivery is not identical to receipt of the goods by the buyer. The question of when and how the property transfers to the buyer is controversial. The Vienna Convention left the question to be decided by the national law applicable to the contract. In English law the parties may fix a dates as the time when the property transfers from the seller to the buyer, but they may not agree on transfer of property in the contract for the sale of unascertained goods before the goods are ascertained. In Iranian law, the property passes on conclusion of the contract when the object of sale is capable of this transfer. The parties may agree on transfer of property at any time after the conclusion of the contract, provided that the object of sale can accept the conveyance at that time. Iranian law is similar to English law because property in unascertained goods cannot be transferred in either law. English law differs from Iranian law with regard to the extent of the parties' freedom in fixing the time when the property is transfered; under English law the parties may agree on a date prior to the time of the conclusion of the contract, whereas under Iranian law the parties may not give a retrospective effect to the contract. However, the differences are trivial; a uniform law such as the Vienna Convention which cunningly avoids the question of transfer of property is compatible with both laws. This paper suggests that delivery can be a proper central notion in the legal systems which, as regards the sale contracts, are based on a "conceptual approach"; accordingly, the property and risk shall pass on delivery. The above arguments can be used to support the transfer of property on delivery. Transfer of risk on delivery, as mentioned earlier, is justified on the grounds that risk should be borne by the person who is in the possession of the goods and has control over them. Thus, if it is intended to link the transfer of risk to the passing of property, the most suitable criterion for transfer of property will be delivery. Transfer of property on delivery, however, undermines the alienatory character of a sale, which requires that the thing sold, so far as the relation between the parties is concerned, is regarded as being, even without delivery, severed from the seller's estate and transfered to the buyer's. therefore, it is not intended here to give priority to any doctrine or surrender to any expedience which may jeopardies this character of a sale contract. A contract for sale, by itself, adequately reflects the parties' intent and determination to transfer the property; hence, the property is transferred on the sale or after the sale as soon as the object of salę becomes capable of this transfer. Delivery, which gives the physical or constructive control of the thing to the buyer, enables the buyer to exercise most aspects of his property rights. However, if property in the goods has not passed to the buyer by the contract, in the absence of any contrary agreement, property shall pass on delivery. As regards transfer of risk, the general policy, by should be determined by questions such as: which party is in a better position to evaluate the loss and press a claim against the insurer and to salvage or dispose of damaged goods? Who can insure the goods at the least cost? Therefore if there are some doubts about accepting delivery as the turning point in the transfer of property, the best criterion for a general clause relating to the passing of risk is delivery. Delivery, or in other words transfer of control of the goods, puts the buyer in a better position than the seller to protect, and insure the goods, puts the buyer in a better position than the seller to protect, and insure the goods and to the responsible for their accidental loss or damage Although Iranian law, English law, and the Vienna Convention have chosen different approaches and rules concerning the transfer of risk, they are similar in linking transfer of risk to the control of the goods, unless the parties have agreed otherwise. Under these three laws the parties are free to fix the time when the risk passes by their mutual agreement. Apparently, there is no limitation on the parties' autonomy and they may agree on any time as the time when the risk shall pass. However, when the parties agree on transfer of risk at a time prior to the conclusion of the contract, the risk of destruction of the object of sale before conclusion of the contract cannot be bome by the buyer, because the validity and existence of the contract when the object of sale is destroyed before conclusion of the contract are questionable under the both Iranian and English law.
