Economic Analysis of the Transaction Intended to Escape from Payment in the Iranian Legal System

دانشنامه حقوق اقتصادی

Volume 27, Issue 18, June 2021, Pages 203-222   

Document Type: Scientific research

DOI: 10.22067/lowecon.2020.48813.0

Authors

pejman Mohammadi^{* 1}; Mohabbat Mozafari²; Narges Keshavarz Bahadori³

¹Professor in private and inpillecpual propirtv law,faculty of low, Tarbiat modarres University, Tehran Iran

²Ph.D. candidate in Ptivate Law, University of Tehran, Iran

³Ph.D. Candidate in International Arbitration, University of Lausanne, Switzerland

Abstract

 
 Extended Abstract
Introduction
Economic analysis of law is globally recognized in all the main legal systems. This approach is specially known to be efficient in the common law countries. In the contrary, in civil law countries such as Iran, where the judgments must be backed by legal provisions, the role of economic analysis of law appears to be less important. Despite this fact, these analyses are of paramount importance in the legislation phase or in the fields where the judges have a wider margin of appreciation such as in contracts.
Theoretical frame work
One of the important issues that can be tackled with the economic analysis of law is the transaction intended to escape from payment. In these transactions, debtors hold the real intention to conclude the contract, but the motivation of their conduct is to escape from the payment of their debts.
Methodology
From the economic point of view, sometimes third parties are affected by the contract. Although not having been considered in the estimated transaction costs and benefits, these effects can influence the welfare of the society either positively or negatively. In economics, these unaccounted effects are known as "externalities". Since, from the microeconomic point of view, the markets are competitive, such externalities can result in the market failure. Transactions intended to escape from payment are one of the main examples of these contracts that can influence potential third parties. The creditors may in fact be the third parties to this type of contracts, which thereby causes them externality. This situation can become even more complicated and vague when there is an asymmetric information distribution or access between the parties, which can in turn bring about the opportunism, too.
Results & Discussion
There exist some laws and provisions that deal with the transactions intended to escape from payment. Amongst the relevant provisions, article 21 of the procedure of financial penalties enforcement enacted in 2015 and the uniform judicial precedent rendered in 2020 related to the aforementioned issue are of paramount importance. Taking these laws and provisions into account, the main question that arises here is whether these available rules, provisions and jurisprudences regarding the transactions intended to escape from payment are effective and sufficient if one takes an economic point of view.
Although there exists a relatively good literature on this issue, including “Protection of Creditors against Contracts with Intention of Escape from Payment of Their Depts In Iran and France’s Legal Systems” in 2012 by Qaboli Derafshani et al.  and “The Economic Rights of Trade Creditors in Order to Avoid Debt” in 2013 by Saberi et.al., the adopted economic approaches are not sufficient or not in accordance with the current changes of the law. Therefore, conducting a new and thorough research on the different aspects of the formation of such contracts and their validity as well as adopting the best fit economic approach to analyze the adequacy of the existing law and provisions and their efficiencies are inevitable. In order to answer the aforementioned questions, the research methodology adopted in the present study will be mainly desk-based and the results will be synthesized using qualitative and descriptive research methods. In this regard, the authors will first examine the transaction intended to escape from payment from a general point of view. In the second place, each principal element for the formation and validity of such contracts will be economically analyzed separately and thoroughly. It should be noted that the present study will not consider the economic analysis of the criminal, as it needs to be addressed in a separate paper.
Conclusions & Suggestions
the research show that there are two types of solutions to deal with the effects caused by the transactions intended to escape from payment. The first one is the private solution. Through this solution, parties shall try to settle their dispute by means of negotiations and / or renegotiations. If the negotiations are vain, then the second solution, namely the public solution, comes to play.  By means of such solution, parties shall bring their case before the court for judgment. If such contracts are considered as enforceable, there would be the possibility to recognize their validity, however, if they are considered as incomplete, such possibility does not exist as their legal life is not fully formed.
In addition, it is noted that the cost of applying article 21 of the procedure of financial penalties enforcement enacted 2015, which is applicable in the case of the transaction intended to escape from payment, is normally very high for the creditors. This clearly renders such a solution economically inefficient. The other drawback of this article is the fact that the good faith of the counter party of the debtor in the transaction intended to escape from payment also can play a role; however, by adopting such an approach in reality, the debtor will benefit from the transaction and prejudice the creditors.
Overall, the authors are of the opinion that despite the numerous economically important provisions, these solutions are not effective enough to deal with such transactions in the Iranian legal system.
 

Keywords

Transaction Intended to Escape from Payment; Economic Analysis; Efficiency; Externality; opportunism

References

[1]      Ahmadi vastanti, Abdolghani. (1962). Bankrupt’s transactions, Journal of central bar association,80,pp.117-141 .(In Persain)

[2]      Ansari, Mahdi. (2011). Economic analysis of the Law of the Contracts, Tehran, Javdaneh publications. (In Persian)

[3]      Badini, Hasan. (2013). Philosophy of the Civil Responsibility, Tehran, Enteshar Co. Publications (In Persian)

[4]      Badini, Hasan. (2003). Philosophical Principals of Economic Approach to the Law, The  Tehran University’s faculty of law and political sciences  journal, 62,pp.91-136 (In Persian)

[5]      Coleman, J. L. (1979). Efficiency, utility, and wealth maximization. Hofstra L. Rev., 8, 509.

[6]      Darvish Khadem, Bahram. (1991). Transactions intended to escape from payment, The  Tehran University’s faculty of law and political sciences  journal, 26,pp.1-30.(In Persian)

[7]      Hatami, Ali Asghar, Zakeri, Mohammad Vahid. (2000). Revaluation of  in Islamic Republic of Iran’s Legal System, The faculty of law and political sciences journal, 48,pp.47-70 (In Persian)

[8]      Hermalin, B. E., Katz, A. W., & Craswell, R. (2006). The Law and economics of contracts.

[9]      Kaplow, L., & Shavell, S. (2002). Economic analysis of law. In Handbook of public economics (Vol. 3, pp. 1661-1784). Elsevier.

[10]  Izanloo, Mohsen, Sharieatinasab, Sadegh. (2012). Comparative Study on “Unenforceability” in Iranian and French Law, Private law journal, 9:2, pp.35-66 (In Persian)

[11]  Jafari Langerodi, Mohammad Jafar. (2003). Annoted Civil Code of Iran, Tehran, Ganjedanesh Publication.(In Persian)

[12]  Katouzian, Naser. (2010). Iranian Civil Code in Current Legal order, Tehran, Mizan Publication.(In Persian)

[13]  Katouzian, Naser. (2009). Civil Law- General Provisions on Contract Law, Vol2, Tehran, Enteshar Co. Publications.  (In Persian)

[14]  Lawson, G. (1992). Efficiency and Individualism. Duke LJ, 42, 53.

[15] Mackaay, E., & Leblanc, V. (2003). The law and economics of good faith in the civil law of contract.

[16]  Mankiew, Gregory. (2008). Principles of Economics, Translated by. Hamidreza Arbab, Tehran, Nay Publication.

[17]  Miceli, T. J., & Miceli, T. J. (1997). Economics of the law: Torts, contracts, property, litigation. Oxford University Press on Demand.

[18]  Nouri, Jafar, Akhundi, Abdur Rashid. (2013). Economic Analysis of Law on Limitation (Lapse of Time).Private law Journal, 5,pp. 35-59.(In Persian)

[19]  Posner, R. A. (1977). Gratuitous promises in economics and law. The Journal of Legal Studies, 6(2). 411-426.

[20]  Posner, R. A. (1979). Utilitarianism, economics, and legal theory. The Journal of Legal Studies, 8(1). 103-140.

[21]  Ott, C., & Schäfer, H. B. (2004). The economic analysis of civil law. Cheltenham, UK: Edward Elgar Publishing.

[22]  Qaboli Derafshani, Seyed Mohammad Mahdi, Mohseni, Saeed, (2013)Protection of Creditors against Contracts with Intention of Escape from Payment of Their Depts In Iran and France’s Legal Systems, Economic law journal (Then- knowledge and development), 19:1,pp.119-147.(In Persian)

[23]  Safayi, Hossein, (2004) Briefing on Civil Law, Tehran, Mizan Publication. (In Persian)

[24]  Safari, Mohammad. (2000). Practical and Theoretical Approaches to Bancrupcy,Tehran, Enteshar Co. publication. (In Persian).

[25]  Sokooti,Reza. (2006). The effect of Bankruptcy judgment on pre-bankruptcy’s Transaction of Merchants, Human studies and social science journal of University of Tabriz, 21,pp.81-115. (In Persian)

[26]  Sotude Tehrani. (1996)Commercial Law, Tehran, Dadgostar Publication. (In persian)

[27]  Trebilcock, M. J. (1997). The limits of freedom of contract. Harvard University Press.

[28]  Veljanovski, C. G. (2007). Economic principles of law. Cambridge University Press.