Int. j. econ. manag. soc. sci., Vol(3), No (10), October, 2014. pp.

636-643

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International Journal of Economy, Management and Social Sciences

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ISSN:
2306-7276

Copyright 2014. All rights reserved for TI Journals.

The respect to the acquired rights in national and international law

Amran Shaaban Pour
M.s. of Private Law, Kermanshah Branch, Islamic Azad University, Kermanshsh, Iran.

Khadijeh Moradi *
Department of Figh and Law, Member of Faculty of Razi University, Kermanshah, Iran.
*Corresponding author: email@email.com

Keywords

Abstract

acquired rights transferrable rights

the conflict of laws
non-retrospectivity of laws
the instant impact of laws

Throughout the fluctuations of the worlds history, the respect to the individuals acquired rights has been one of
the ideals of the fair-minded. The principles of such right can be found in laws, customs, regular trends of human
society, and the moral and legal tenets. Besides, the acquired right is not restricted to national laws, but it also
burgeons in international law through the issues of transferrable rights and the dynamic confrontation of rules.
When a legal relation is formed based on a competent law, having no bonds with law and forensic rights, and an
intervening period has elapsed since the relation was established, during which the right is consigned from the
home state to a foreign country, the question comes to the fore that which of the two countries body of law
should it comply with. So to say, both in national and international law we face the temporal and locational
conflict of rules, with the difference that in national laws the confrontation deals with the disparity between old
and modern laws constituted by the judiciary of one country, while in private international law, the conflict is
between the constitution of two or several, each having their own legal codes. Another difference lies in the fact
that the non-retrospectivity of the laws runs forth only in national laws, whereas the international context is a
stage for performing the principle of instant impact of the law.

Introduction
The actuality of a society is recognized considering the bonds that have been formed in different respects. Wherever there is society so are the
connections, the most prominent of which are legal relations. Individuals set their social dealings in accordance with legal norms of their time,
and it is in the shadow of security and freedom that they optimistically await the realization of social justice. If the judiciary legislate a new law,
so that its regulations impedes the former law, the legislator jeopardizes the rights that the people have acquired in different situations, ruining
any hope of economic stability and interpersonal harmony in social relationships. Accordingly, the issue of respect to the acquired rights arises
from the confrontation of new and preceding laws. Therefore, acquired rights are unchanging and certain rights gained by individuals as a result
of the former laws enforcement, and it should be preserved from any intrusion of the new law. However, as we will see, this is not
incontrovertible and in some situations, with consideration of social convenience and order, new laws may interfere with the previous ones, but
they are mere exceptions and require the legislators specification in the new law, as we read in article 4 of Civil Law, a laws impact is
prospective with no touch upon the past, unless it is stated in the law itself.
The cases of the new laws interference with the former are not confined to the legislators affirmation, of course, and it will be discussed later.
The non-interference of the laws with the past is labeled non-retrospectivity of laws, the salience of which the Act 4 solidifies. Besides, there
is another legal principle dubbed the instant impact of laws. This principle accounts for the rule of law over the future. According to this
principle, the laws impact is on future, and it must rule over the ongoing and the future rights.
These are the conflict-settlement principles, which aid to resolve the conflict of laws in a particular period. Had the legal dealings been restricted
to domestic judicial interactions, there we would have difficulty imagining an international society. What we face today is the unfeasibility of
restricting a countrys legal interactions to the national ones, since never in the history have the international interconnections of the countries
and their citizens been so immense. Trading and the transference of individuals and goods from one country to another causes numerous
international issues. Sometimes, these issues pertain to the relationship between the governments or their citizens or even with alien
governments. The salutary flow of these connections necessitates that some regulations rule over them.
In this paper, the principles of the respect to the acquired rights and the domain of laws rule in time and place will be examined, and other
alluded issues will be scrutinized respectively.

1.

The Respect to the Acquired Rights

Section 1: The concept of the acquired rights

Lexically speaking, acquired rights means gained rights or achieved rights. The idiomatic meaning of the phrase is not too distant from its lexical
meaning, and whatever right awarded to person by a former law is called the acquired rights.
There is a lack of agreement among jurists apropos the definition of the acquired rights:
1. Blondeau, who with the consent of numerous authors was the first to examine the concept, builds his theory around the legality of desires.
Having inspired some nineteenth-century authors, this theory proposes a philosophical basis for the temporal conflict of rules: due to the
peoples need for security and the stability of laws, no rule should affect the past and ruin the reasonable desires1.
Generally speaking, legitimate expectations are reasonable and valid aspirations, formed in course of the correspondence between people
and public authorities, especially in the application of non-compulsory conveniences, the incomprehension or ignorance of which might
cause damage or deprivation of benefit to the citizens.
Thats why the guarantee of these aspirations requires a kind of legal support2. However, due to the lack of a clear criterion for the change
of reasonable and inviolable desires, Blondeaus definition failed to be a progress in the juridical field3 . In this definition, there is no lucid
1
2

Naser, Katuzian, The Philosophy of Jurisprudence, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006, 287
Mohammad hossein zareei, A Contemplation on the Possibility of the Application of Legitimate Anticipation available on www. Esr.ir

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International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

2.

3.

boundary between the legitimate and illegitimate desires and there is no criterion to tell them out. Besides, we are not informed what
exactly makes a legitimate desire.
Merlin defines the acquired right as: a right that is in ownership of the person, and the obligator cannot bar it weather it arises from a
contraction or a will or is inherited by the heirs. He uses simple discretion against the acquired right. As stated by his definition, a right is
not retrievable, and this irreversibility is the discriminating factor between the right and discretion. His prime conclusion is that the
suspended rights must also be treated like the acquired rights, since the obligator cannot bar them. With minute manipulations, this
definition has been approved by many authors4. Theyve differentiated hope and expectation from the acquired rights and concluded that
suspended rights must be accounted for as acquired rights. What seems questionable in Merlins definition is on one side his absolute view
that whatever rule arises from the law is indubitably in the ownership of the person, and on the other his failure to distinguish between some
situations which are fulfilled in a gradual or sequential manner like: a will. As it is clear, a will is fulfilled only with the testators offer and
after his death and his legatees affirmation. So if a law is legislated in the time span between the testators offer and his death or between
his death and the legatees affirmation and changes the fulfillment of the will, we face the problem that which law should it obey? The
proper law at the time of the testators offer, the proper law at his death time, or the proper law at the time of the legatees affirmation? As
an answer, it can concisely be stated that theoretically, the right that arises from the will is yet not in the ownership of the legatee, its legal
description and fulfillment to be carried out beforehand, and by resolving the temporal conflict, the competent law should be determined.
Merlins definition, nonetheless, is noteworthy, since it classifies the suspended right as an acquired right.
Some of the authors believe that a right is considered acquired right only when its enforcement is possible in the court. According to this
definition, taking legal action is the criterion that distinguishes the right from the desires and expectations. Acquired rights have always had
this priority, even though no one can go to court in order to claim or even protect his desires5.
As we see, the third definition also fails to consider the fact that sometimes there is a right but without any possibility of formally
requesting it from the court. An example of such a right is natural debt. The entitled party cannot assert the right but after the payment, the
debtor cannot claim its restitution. Therefore, the possibility of claiming a right cannot be a proper criterion as well. Accordingly, none of
the discussed criteria is satisfactory: each carrying a fragment of truth but not liable to dissolve all the conflicts. Furthermore, in the family
context where mostly right and duty are intermingled, these definitions cannot be trusted6.
In a definition, the acquired right has been explained as acquired right arises from contraction and law, it is a concession owned by the
entitled partys will and must be preserved from the fluctuations of time.7 When a right roots in a persons will, and people have created
it as a duty and in form of a contract, no law, decision, or recent announcement can affect it or cancel its contractual privileges. From this
view point, the main reasons of the respect to the acquired right are the inviolability of human, respect to his will and desire and also the
impossibility of detaching the concepts of right and human, who thinks and decides freely8.
The concept of acquired rights is of great importance, for it is a tool of justice to intervene in the law. An acquired right is one that is gained
during the reign of a law and if the law is not abolished, there is no reason for the nullification of the right as well. Hence, acquired right is a
dynamic notion consented by all legal and financial systems. Yet, in some rules, there are occasions in which a right is seemingly
categorized as the acquired right, though the right is quite different in nature from the acquired right. A clear example is capacity.

Section 2. The history of the theory

A. The classical view

According to the theory of the acquired rights, there must be a difference between the acquired rights of the people and their expectations. The
new law cannot invalidate the established rights gained during the former, nonetheless, the expectations and possible rights formerly supposed to
be gained cannot hinder the new laws enforcement. Concerning the past events, one should discriminate the legal and logical requirements of
each phenomenon from its likely results9.
i.

The direct and essential upshots of the past events

The direct and vital effects of the past events are among the requirements of the acquired right and follow the law that includes them 10. For
instance, a child has reached the age of majority and, accordingly, can influence his own personal status. A law augments the age of majority, so
that he is categorized as a child. The same law is not able to seize his transaction right, since this is a right of maturity awarded by the former
law. By the increase of this age the same person, however, is deemed unstable and as the law is enforced, he can no more influence his own
property or right without the parents or guardians permission. Thus, the right that is awarded to the person by the former law is the acquired
right of transaction, and the new law cannot annul it or hinder its effectiveness.
Thanks to the Islamic jurisprudence, the propertys permission is the permission of its requirements. This rule is quite logical, in other words,
when the legislator permits an action, the requirements of the action must also be permitted.

ii.

The indirect upshots of the past events

The upshots that indirectly arise from the past events conform to the new law, since its fulfillment has only been an expectation and the new
laws enforcement would not ruin any established right11.
For example, as we know, according to the articles 946 and 947 of the Civil Law before the reformations of 2008, by the husbands death, the
wife could only inherit from the price of the state and trees, with no inheritance of the land of the deceased. After the reforms of 1387, however,
the article 947 was omitted and 946 was revised as follows: and if the deceased has a child or children, the wife inherits one eighth of the
movable property and one eighth of the real estate, including the premises or the land, and if there is no child, the wife inherits one fourth
respectively. Article 948 holds that if the heirs withhold the payment of the price, the wife can vindicate her right from the corpus of property.
The recent reforms have caused great changes in Islamic jurisprudential issues concerning the wifes inheritance, but if the husband is dead
during the enforcement of the former law (articles 946 and 947 of the Civil Law before the reforms), having in mind the recent reforms about the
mentioned issues, can the wife claim that with the enforcement of the new law she shares in and inherits from the price of the land? In answer, it
must be clarified that the inheritance of the wife from the lands price has been one of the indirect and probable upshots; correspondingly,
3

Naser, Katuzian, The Philosophy of Jurisprudence, 288.

Naser, Katuzian, The Philosophy of Jurisprudence, 287.
Naser, Katuzian, The Philosophy of Jurisprudence, 288.
6
Naser, Katuzian, The Philosophy of Jurisprudence, 288.
7
Mohammad hossein zareei, A Contemplation on the Possibility of the Application of Legitimate Anticipation available on www. Esr.ir
8
Naser, Katuzian, The Philosophy of Jurisprudence, 288.
9
Katuzian, Naser, The Philosophy of Jurisprudence, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006, 283.
10
Katuzian, Naser, The Philosophy of Jurisprudence, 442.
11
Katuzian, Naser, The Philosophy of Jurisprudence, 254.

4
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International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

considering that the new law does not affect the past events, the wife cannot claim such a right. Therefore, the enforcement of the new law, has
not theoretically invalidated any established right and the issue of the respect to her acquired right is not meaningful here.
B. Reformatory views
The views about the acquired rights are examinable in the following three categories:
First group: As soon as a right is created, it is acquired and must be respected, even if the person possesses it only because of his birth. There are
only two conditions for each right: whether it exists or not. One cannot imagine a right that exists but is not acquired yet. Thus, the proponents of
this view, being mainly in Germany, Belgium and France, consider the word acquired as redundant and incorrect. If the new law blights an
established right, then it is retrospective, but the profits awarded to the individuals as a result of the former law, does not hinder the instant
enforcement of the new law. What seems questionable in this definition is that it doesnt reduce the fulfillment of acquired rights, because the
differentiation of the right from the simple profit is quite a demanding task, and for the most part it remains as a question whether the new law is
hampering a right or a simple profit12. As discussed, according to these authors, right is inherently acquired, that is, as soon as it is established, a
right is acquired, not to be nullified by any means. This part of the theory is also debated, since sometimes a right is created but it cannot be
reckoned to be acquired. For instance, when there is a commitment between the two sides of a contract and after a period of time, its corruption
is proved due to some reasons, there is no acquired right for both sides, though before the recognition of the corruption it may apparently seem
that a right is created. Since on account of the article 365 of the Civil Law, an invalid contract does not affect the possession.
Second group: The right that directly proceeds from the law, behind which there is no personal drive, adheres to the law and are annulled with
the laws abolition. In these cases, the changes fostered by the new law, should not be mistaken with its retrospectivity. However, where a right
is formed by the persons will power or is created by the personal connections, the new law is not allowed to affect it, and this is the only case
where the law is retrospective and invalidates a right13 . The views of the second group are noteworthy, thanks to the fact that the authors of this
group distinguish between the juridical situations that emerge from the law and the juridical situations proceeding from the contracts.
Nevertheless, the lack of differentiation between imperative and supplementary rules makes it prone to critical comments. As we know, the
consent of the individuals is not possible against the dispositions of imperative rules, since they deal with the societys order and social
convenience. Against the imperative rules are the supplementary and explanatory rules in which the two sides of the contract can reach a mutual
consent contrary to its content. Even with the future rearrangement of the supplementary rules, the contents of the contract would remain
untouched. Basically, the ensuing effects of the contract are considered according to the rules of the time of the contracts conclusion.
Third group: They have drawn a distinction between the acquisition of right and the regulations which affect its content and fulfillment. In the
first case, if the law that has changed the ownership of the right changes its validity as well, it has been retrospective, in the second case;
however, the instant enforcement of the new law suffices to include all the possible rights and its fulfillment cannot be hampered with the excuse
of the acquired rights. Thus, when a law brings about some changes to the effects of marriage along with adoption and guardianship, it deals
with the future upshots of these institutions. While according to the theory of acquired right, the rights created concerning these issues are
constant in content and effect and the new law cannot affect them14.
As a conclusion, it cannot necessarily be asserted that whatever right is created by the former law is in the category of acquired rights, and one
may distinguish the stages of a rights creation and its effectiveness, especially because some of the rights, like marriage and labor contract,
follow the enforcement of the new law and are controlled by it due to societys order and social convenience.
C. An appraisal of the views
Apart from the misconstrues of the social rights followers, who dismiss private rights in favor of the social rules and deem the theory of
acquired rights inconsistent with social development, it is quite plausible to accept that this theory is not able to deal with all the difficulties in
the way of the laws temporal conflict. Moreover, a law may be retrospective without ruining a right. A law, for example, may invalidate one of
the clauses of a will. The will conforms to the law of its preparing time, thus the interference of the new law would be equivalent to its
retrospectivity. Furthermore, if we assume that a right becomes acquired only when it is decisively in ones ownership, we would have difficulty
applying this to non-financial rights15. The main pitfall of the theory of acquired rights is that its followers reckon all the juridical situations as
private rights, that is, they do not discriminate between the privileges granted by the law to the private rights and the right they have gained in
course of their dealings. Mingling the two concepts, the theory fails to propose an attainable solution for some social issues16. As we know,
however, having in mind the constant evolutions, the human society is in need of development and maturation. One of the mediums of this
movement is the rules compatible with time and responsive to social demands. The success and maturation of society flourishes only as a result
of new, practical and up-to-date rules, thus a set of traditional rules are not permanently reliable. The modern necessities of the individuals are
not proportional to those in the past, and the social relations has dramatically increased and undergone a particular variation. Taking into account
that a society is in urgent need of the new laws, is it possible to ignore social convenience with the excuse of the acquired rights and prospect a
better society? There is no doubt in the necessity of the respect to the peoples acquired rights, but the imperative point is the boundary and
conditions of such respect. Keeping in mind the exigencies of time and social order and convenience, the legislator can prioritize the private
rights. Despite all the criticisms directed toward the theory of acquired right, it is noteworthy that some of them have been resolved in the
reformatory views discussed above. In the enactment of a new law, the legislator must stay committed to the individuals acquired right, and set
out new rules considering all the facets, necessities, and social and individual conveniences.
The researcher believes that the respect to ones acquired right should not transpire at the expense of others deprivation, and all extravagance
and negligence must be put away, and moderation path be taken. In other words, if the former law has granted someone an acquired right, in case
the second party is in trouble, the legislator or judge can modify the content of their contract in order to conform to the rules of justice.
Section 3. The principles of national and international acquired right
A. national acquired right

A right created in a sovereignty but that has not been vindicated properly is called national acquired right, owing to the fact that it is in force
within the boundaries of a country17 .
12

Katuzian, Naser, The Philosophy of Jurisprudence, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006, 283.
Katuzian, Naser, The Philosophy of Jurisprudence, 290-291
14
Katuzian, Naser, The Philosophy of Jurisprudence, 291-292
15
Katuzian, Naser, The Philosophy of Jurisprudence, 294- 295
16
Katuzian, Naser, The Philosophy of Jurisprudence, 295-296
17
Alborzi Varaki, Masoud and Mohammad Mahdi Rahbari, A comparative study of Rules and Exceptions of Acquired rights, Majd Periodical 22, (2012): 122-151.
13

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The Respect to the achieved Rights in the Internal and Internatioonal law
International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

The national acquired right can be explained as a right achieved during the authority of the former law within the borders of a country, and
which is considered and respected in the legislative alterations. Some of the instances of national acquired right are: demarcation right, right of
pre-emption, good will of a business, trade, etc.
According to the article 4 of the Civil Law, a laws effect is non-retrospective, and it does not affect the past, unless it is mentioned in the law
itself. This article mentions the principle of acquired right, but it can only implicatively be inferred from the articles content, particularly where
it declares the law does not influence the events prior to itself, though the mentioned or other articles of the Civil Law the legislator should
have asserted the recognition of peoples acquired rights. The article discussed is, nevertheless, one of the bases of the respect to acquired rights.
In some other rules, also, there is an issue of respect to acquired rights, some instances are, the ordinance of registration law, and the ordinance
concerning the avoidance of bestowed lands vendition, ratified in 1363. In the judicial process, also, there are numerous verdicts that recognize
the acquired rights. For instance, the public panel of the court in its verdict 1 given on 23/1/1379 (April 11, 2000), due to a disparity between
branch 14 of the court and Sirjan general court, deems the farming right as arising from the good offices of the farmer, its source being the convention.
Some of the acquired rights like the right of the root, and the farming right stem from the local customs, and duly the legislator included them in
the text of the law.
Considering the principles of law and justice, the respect to the acquired rights is quite noteworthy and it seems suitable that an acquired right
remain untouched by the changes of law.
B.

The international acquired right

Sometimes the relationship between the conflict-settlement systems appears as temporal relationship, so that one legal relation in two
consecutive times deals with two legal systems. In this case, the conflict of the laws occurs at different levels of the rights existence, which is
also called international, acquired right18 . For instance, the acquired right in the article 996 of Civil Law about movable property.
Article 996 alludes to the respect to international acquired right, however, if a movable property is taken to another country, the rights of the
individuals concerning that property in the home state cannot be interfered.
Section 4. The upshots of national and international acquired right
A. The effects national acquired right

The upshots of national acquired right can be summarized as follows:

1.

The stability of laws and the security in judicial relations

One of the salient consequences of national acquired right is the stability of existing laws and non-retrospectivity of the new laws, except for
some cases in which the social order and convenience matters most. It is only in the shade of the stable laws that people, quite placidly, arrange
their mutual legal relations and are able to trust the law. If there is a lack of stability in the laws and the new law, with no plausible ratiocination,
manipulate the order of business and social relations, performing desirable actions in such an atmosphere would not be feasible anymore and
chaos would overshadow the entire society. Correspondingly, the respect to the peoples acquired rights plays a vital role in the stability of laws
and security of legal relations.
2.

The fulfillment of social justice and equity

The ultimate aim of the rules is the fulfillment of social justice. Having this goal in mind, the legislator sets out and enforces new laws. Social
justice will not be fulfilled, unless the entitled party is granted his right. The respect to the acquired right is a means of achieving social justice;
moreover, based on the tenets of equity, the party entitled should gain his right in the course of the laws enforcement, without any interference
from the side of the new law.
3.

The possibility of claiming the rights, their fulfillment, and suing

According to the principle of respect to the acquired right, every individual is capable of claiming his right and its fulfillment, thereby preventing
it from being spoiled. For example, in the principle of litigation and verdicts enforcement, the preservation of evidence is a possibility predicted,
in which the entitled party could act in order to preserve the present situation and probable future right and bring a lawsuit to gain his legitimate
right.
4.

The responsibility of impossible promise breach and the compensation of damages

Whoever withdraws from his commitment or fulfill it with tardiness, thereby causing damage to someone, whether the commitment is
contractual or legal, must compensate the damage. In fact, the existence of such a sanction is one of the upshots of respect to the acquired right,
putting the responsibility on the shoulders of contract breaker whether it is contractual or legal.
5.

The prohibition of the obligor from acting contrary to the fulfillment of the debt

The obligor is not allowed to thwart the fulfillment of the debt or postpone it by some actions, since it is against the principle of respect to the
acquired right and is not acceptable. For example if a debtor bestows his property to another person in order not to fulfill his debt, the creditor
can prevent his right from being spoiled by seeking the rescission of the illusory contract, even after the verdict is issued.
6.

Reliance on the right in face of a third party

Generally, the acquired right is referable in face of a third party, and the right owner can solicit his right. Accordingly, if the entitled party deems
his right on the verge of being impaired, he can enter the action as a third party and defend it against the disputants.
7.

The continuation of the former laws enforcement and the prohibition of the new laws retrospectivity

The new law is halted if it interferes with the individuals acquired right, hence it cannot be retrospective. In some cases, the new law, directly or
implicatively, repeals the former law, but if the issue of individuals acquired right appears, the repealed law continues its enforcement in this
particular domain, partly due to the importance of the peoples right. For instance, the future effects of the contracts conform to the time of the
contracts preparation.
8.

The application of acquired right to the unprecedented events

With the elapse of time and the changes occurring to the human society, national laws create some unprecedented rights for the individuals. For
example, granting subsidy to the individuals, using internet or social networks, etc, in these cases, based on the principle of acquired right it can
be said, for example, that the government is not authorized to deprive different classes of people from the subsidy, since such a right has
formerly been awarded to people, and the sovereignty is obliged to respect the right.
18

Alborzi Varaki, Masoud and Mohammad Mahdi Rahbari, A comparative study of Rules and Exceptions of Acquired rights, Majd Periodical 22, (2012): 122-151.

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International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

The upshots of international acquired rights

The limits of the rights international effect should be set according to the international law and Irans national law, since each of the two laws
has its own part and set their own limitations for the rights gained legally: 1. The limitations set by the international law 2. The limitations set by
Irans law.
1. The quantitative upshots of acquired rights
Firstly, the right would have the effects enforced by the international law even if Irans law has predicted fewer effects for it19.
Example: Two brothers live under a government, which compels the second degree relatives to pay maintenance, thereby if one of the brothers immigrates
to Iran, Irans court cannot turn down his maintenance request with the excuse that in Irans law, the payment of maintenance is directed toward
the first degree relatives. The right has been created in their home state and it must remain unchanged in the destination country (Iran).
Secondly, no right can be more effective than it is in its national state20.
According to Almasi, if a right is suspended by the law of the home state, it also must be considered suspended outside of the country. To
analyze the viewpoint it should be mentioned that based on the second supposition, the effect of the right is identical in the home state and
outside of it. The equality of a rights suspension in and outside of the home state can be stated as an instance of the mentioned supposition, not
as its main significance. For example, if in a country a right is created in which a work of art is supported in a twenty-year-span, the period that
is thirty years in Iran, it is not plausible to say that the publication right should conform to Irans law, since the right was as effective in its home
state as it can be in Iran.
2. The qualitative upshots of the acquired right
At times, a right created in another country fails to have the same effect in Iran. Here, the national law interferes and prevents the fulfillment of
the right in Iran. The interference of Irans law takes shape in the two following hypotheses:
First, if in Iran there is an opposing right to the mentioned right, since a right is valid as long as there is no contradictory right21. If an Iranian
couple residing in the U.S bring an action for divorce, and the mentioned court issues the divorce verdict in accordance with the U.S law (the law
of residence), the Iranian court can revoke the divorce verdict with the ratiocination that the divorce must conform to Irans law and not that of
the U.S. (Article 6 of the Civil Law). Second, if the fulfillment of the created right is intolerable for some law associations, in other words if the
fulfillment of the right is inharmonious with Irans social order, the entire or a part of the rights effect would be nullified 22. For instance,
incestuous marriage, being legal in some countries, cannot continue its effects in Iran, since Irans law has forbidden incestuous marriage (article
1045 of the Civil Law). Thus considering the issues incongruity to Irans social order, such a marriage is not enforceable.

2.

The Domain of the Laws Temporal and Locational Reign

Section 1. The domain of the laws temporal reign

Law, as a source of right, is a general and permanent rule, neither bounded to any person or place nor limited to a particular time. This rule
should govern the society. The reign of law would be established through its enforcement. Therefore, mostly an indulgent law can rule over
individuals and governmental associations 23. A law is formed in the bedrock of time and place, continues to live, and from time to time, due to
the social convenience, undergoes some alterations or is entirely nullified. A new law is ratified, abolishing the former one. In some cases,
despite its being abolished and because of the respect to the individuals acquired right, the former law continues to enforce some of its effects in
some areas. In a legislation system, after the laws ratification and enforcement, the final act regarding the public notification is issued in order
for the people to be aware of the new laws ratification, after the enforceability of which no one would claim the ignorance of it. Since the
ignorance of law does not bring an exemption for the individual. In Iran, according to article 2 of the Civil Law, approved by the Guardian
Council, a law is enforceable 15 days from its publication in the official newspapers. In some cases, the law itself includes the date of its
enforcement, which is, of course, considered an exception.
Form what was stated, the link between time and law can be inferred. A law is formed, enforced and abolished in the times bedrock. The nature
of law is not time-bounded and sometimes a law, quite exceptionally, is designed for a particular period of time after which its dominion is over.
Despite, a law should not be assumed eternal. Moreover, the study of law in relation to the time along with the difficulties of differentiating the
dominant laws of social events must not be ignored. The law is an unprecedented phenomenon enforced by the judiciary. The new rule is nonretrospective, but whatever happens in the past remains out of its grasp and obeys the rule of the events time24.
Section 2. The concept of conflict in Law
The temporal conflict of the laws means the conflict of the two laws, one belonging to the past another to the future. Regarding this issue, we
may face several questions: is the new law prospective or it can affect the events before itself? Whether the new laws exclusively rule over the
future events or the abolished former laws are still reliable in some cases?
As long as the new law contradicts the former one, the latter is abolished. The new law, then, reigns and the rules of the past are no more in
force. However, sometimes there are events that root back in the former law and continue even after the laws abolishment. The question is, in
this conflict between the former and new laws, which one should be enforced over the discussed event. To border between past and present, the
events happened and totally fulfilled during the enforcement of the former law are categorized under the former law, and the events that occur
after the enforceability of a law are classified under a new law. Yet, there are events formed in the former law but continue to be in force, the
effects of which are prolonged to the new laws domain. This is the temporal conflict of the laws, in fact. Of course, the conflict of the laws
should be replaced by the interference of the laws, since the whole problem occurs in the enforcement of the law, not its enactment. The new
and former laws contradict in the enforcement stage, thus using the conflict of the laws is not free of negligence25.
It must be added that the transference of power from former to the new laws includes not only the enactments of the Legislative Council, but also
all the general and permanent regulations enacted by the Judiciary. Whether the same rules can be applied to the international conventions,
19

Almasi, Najad ali, Private International Law, Tehran, Mizan Publications, 11th edition, 2011.
Almasi, Najad ali, Private International Law, 148
21
Almasi, Najad ali, Private International Law, 149- 150
22
Almasi, Najad ali, Private International Law, 149- 150
23
Katuzian, Naser, The Philosophy of Jurisprudence, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006.
24
Katuzian, Naser, The Philosophy of Jurisprudence, 263
25
Katuzian, Naser, The Temporal Conflict of Laws, Tehran, Mizan Publications, 4th edition, 2010, 27.
20

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The Respect to the achieved Rights in the Internal and Internatioonal law
International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

which are considered as laws, has not been clarified in related laws. However, the temporal conflict or interference may be applicable to them, to
which the methods of conflict settlement may also be relevant.
Section 3. Transferable rights
A regulation that is discarded from the law, would give way to another law, since the social interrelations must not stay out of the legal order. In
course of the power transfer, the occurrence of some events problematizes the choice of the enforcing law, likening it to the conflict of laws
between the governments. The rules that monitor the transference of power are called transferable laws, the subject of which is finding a way for
settling the interference of laws.
The transference of power from the former to the new law gives rise to several issues. In addition, there are conveniences according to which the
enforcing law should be chosen. Without considering them, no proper solution can be reached regarding the settlement of the laws conflict.
During the past few centuries, it was assumed that the entire sophisticated issues would be resolved with the principle of non-retrospectivity of
the laws. In the 20th century, the critics figured out that not every single matter should be reduced to non-retrospectivity: the necessity of laws
prospectivity, also, cannot be ignored. According to the principle of justice, an abolished law should continue to enforce on a past event which is
still in force in the present time. The totality of these three conveniences should be based on an order so that, regarding the settlement of the
laws conflict, the more convenient law is enforced26.
As a conclusion, it must be clarified that in order to settle the conflict of laws, the methods should be applied harmonious with that particular
case, since no all-inclusive method could embrace the settlement of all the conflicts between the laws. To distinguish the enforcing law is vital to
the extent that if it were carried out properly, it would guarantee the respect to the peoples acquired rights. Apart from the private benefit of the
individual, however, the social conveniences and the new order that contributes to the social well- being must also be taken into account.
Therefore, there must be equilibrium between the private and social conveniences so that beside the laws enforcement the justice is also
attained. Even at times the matter in question is not the contradiction of the private and social rights, but the discord between the rights of two
individuals, a problem about which the legislator, as the proponent of religious legislation, and the litigator, as its enforcer, should take proper
actions in adjustment of the situation, so that the principles of justice and the respect to acquired rights are both achieved.
Section 4. The locational domain of laws
Each countrys law is of domestic credit, ruling over the residents and properties within the boundaries of the country. In other words, the people
under the rule of a government along with their property comply with a local law. However, the immigrants of other countries, from the
viewpoint of private property, obey certain laws.
Concerning the temporal conflict of laws, we witnessed the clash of new and former laws, the question being which of the two laws should be enforced
on the events or rule the created effects. In the locational conflict, the discussed disparity between the new and old laws does not matter. Here,
the question arises that from the laws of several countries, each having their own independent judiciary, which one should rule an event.
Such a conflict emerges when an event falls within the domain of several countries law, a situation in which the supreme power of governments
is consequential. For instance, a French man marries an Iranian woman. Having in mind that the marriage was contracted in Iran and considering
the wifes nationality, the adjustments of the couples relationship must conform to Irans law and because of the husbands nationality, the law
of France may also be applicable to the marriage. The choice between the laws and methods that should litigate the case are of the main subjects
of international private rights.27
The question is whether the locational conflict is limited to locational elements or if the temporal aspects are also effective. As an answer to the
question, it must be mentioned that in the locational conflict of the laws, the locational aspect is more influential than the temporal one, the
conflict being about the disparity in the laws of several countries. In the temporal conflict, however, the disagreement is on the domestic law of a
country. As it is clear, there is a time span intervening between the creation and forming of a right and its enforcement. A right is formed or
created in a country at some time, and is enforced or becomes enforceable in another country at some other time. Sometimes, a foreign law is not
enforceable due to its contradistinction to the social order and interference with the former law, nevertheless, it can be inferred from the
discussed points that the temporal elements are not null in relation to the locational conflict of laws, especially regarding the dynamic conflict,
which is going to be discussed later.
Section 5. the dynamic conflict of laws
A. The definition
The dynamic conflict of laws is a juridical relationship in two consecutive periods of time, regarding two different legal systems.
Coined by Barten, the phrase means a situation in which, due to the deliberate alteration in the issues correspondence to each of the two
countries law, the source of the issue falls in the domain of the countries legal system, causing a question to raise: For a source created in the
home state, what value could be stipulated in a foreign country? Which of the two countries law must the issue obey? Is time effective in this
conflict? In other words, the issue and its source set apart, each falling into the legislative domain of different countries. To put it in a nutshell,
this type of conflict is a mlange of temporal and locational conflicts28 .
The question we face here, is to figure out which stage of the right's establishment does the conflict of laws occur in. Does this conflict
correspond to the initiation of the right or its enforcement? To fathom the difference of the two is of vital importance. Since in the first stage the
object of the exercise is to establish a competent law according to which the right should be formed and in the second phase, the aim is to work
out that to what extent the mentioned right should be respected or be the source of effects. Pillet and Niboyet have dubbed it "the international
recognition of the acquired rights" and "the international impact of the acquired rights and the international impact of the rights" respectively,
and Barten has termed it the dynamic conflict of laws which is more common compared to other nomenclatures29. In the dynamic conflict of
laws the problem of international acquired right comes to the light, due to the confrontation of several countries law. The rights that are created
in a country, and fulfilled in another, are respected from international viewpoint.
B. Types of the dynamic conflict
Type a: the absence of conflict when the right is in creation stage: a situation in which a right is formed in the domestic aura of a foreign
countrys law with no sign of a conflict. For instance, if an English man and woman reside and marry in England, there would occur no conflict
about their marriage. In this type, the international cause is of no role, consequently, there would arise no conflict30 .
26

Katuzian, Naser, The Temporal Conflict of Laws, 268-269

Katuzian, Naser, The Philosophy of Jurisprudence, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006.
28
SalJooghi, Mahmood, Private International Law, Vol 2, Tehran, Mizan Publications, 2010, 136-137
29
Almasi, Najad ali, Private International Law, Tehran, Mizan Publications, 11th edition, 2011, 138-139.
30
Almasi, Najad ali, Private International Law, 140.

27

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International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

Type b: the appearance of conflict from the rudimentary stages of the rights creation: a situation in which a right is created in a foreign country
and in the ambience of international private right. The international cause manipulates the creation of right in this type.
Accordingly, the establishment of a competent law in both types seems vital, for example had in the mentioned example, the couple married in
Italy31. In this type, the international cause interferes with the stage in which the right is created; hence a competent law must be established in
both types.
Type c: a person who has gained a right in or out of his home state, changes his residence or nationality. We assume, for instance, that a
Spanish man and woman married in France, and after period of residence in France, one of them takes the French nationality. Now, the question
is whether the change in the nationality would affect the validity of the mentioned marriage and its imminent effects32.
Type d: a situation in which a country annexes some parts of another countrys soil. If in the interval between the stages of rights creation and
its fulfillment the issue of annexation is put forth because of which the competent law changes, how should the case be handled33?
C.

The advantages of differentiating the initial stage of the rights creation from the rights international effect

The conflict of laws may correspond to the initial stage of the rights creation or the rights international effect, and whether the right is in the
former or latter phase, the competent law may be different. When the conflict lies in the international domain, the court must determine the laws
that are competent regarding the conflict- settlement methods of the home state, and if the right is created based on the discussed law, it must be
recognized as internationally valid, even if the rights creation in the destination country is not possible.
The main cause is that in the international effect stage, the issue of the right's enforcement arises: the issue of its existence. If the destination
country applies the rules of the initial stages of right's creation to the right's international effect, the international life would be disturbed in most
cases, causing the respect to the created rights to wane. As a result, the forming stage of the right and its international effect must be segregated;
otherwise we would face obstacles settling the conflict of the laws34. From one respect, the forming stage of the right and its international effect
resemble profit and vindication of right in the domestic law, since the individual must potentially be in the ownership of a right so that he would
be able to claim or fulfill it. In the international domain, the person must initially possess a right in his home country, so that he would be able to
claim its fulfillment in another, a right that is fundamentally attainable, unless the matter in question is social order or a fraud is detected in the
law, the circumstances in which the enforcement of the foreign law is not possible.
D.

The conditions of the right's international efficacy

If a right is to be considered acquired in Iran or as internationally recognized, two conditions are imperative:
One: a right must be formed harmonious with a law, whose conflict-settlement the Iranian law deems competent 35.
Example: Iran's private international law reckons the personal status to be compliant with the national laws; nevertheless, in some countries they
obey the law of residence country. Having this in mind, if an Iranian man and woman, the marriage between whom is permanently forbidden
(due to the blood relationship between them), marry in a country which deems the personal status to be subjected to the law of residence country,
the marriage would be invalid in Iran, since the private international law (article 6 of the Civil Law) considers the marriage of the Iranian
residents of foreign countries to comply with Iran's law, deeming the law of residence country, to be incompetent.
Two: the right should be formed completely, having all the necessary conditions 36.
Example: in some countries, the purchase happens when the movable goods are delivered to the customer, in other words, the ownership of the
movable property is certified only when it is handed over to the customer, while such a rule does not exist in some countries, that is to say, as
soon as the sale happens, the buyer is the propertys possessor and the vendor owns the purchase money. If an individual buys a movable
property in one of the countries of the former group, Switzerland for example, it goes without saying that transactions validity obey the law of
the country in which the vendition has happened, that is all the conditions, such as the propertys delivery, must be fulfilled in order for the buyer
to possess the goods (article 714 of the Switzerlands Law). If, before delivering the object of sale, the seller coveys it to a country of latter type,
Iran for instance, the buyer cannot claim to possess the goods because, thanks to the article 362 and 339 of the Civil Law, after the initial
agreement on the object and price, the purchaser is the goods owner. In other words, the mentioned right has not been created based on a
competent law to be recognized valid in Iran37.
E.

The settlement of dynamic conflicts

Two views are significant here: some believe that the settlement of dynamic laws should be built on the respect to the acquired rights, while
others consider the pattern of solution for domestic transferrable rights to be the only efficient solution. In Iran, the resolution of the dynamic
conflict follows the second view. This can be inferred from the last sentence of the article 966, originally dealing with the conflict of laws about
the movable property, the transference of a movable property from a country to another, cannot invalidate the legal rights that the individual has
gained in the home state.38 Apparently the phrase reflects the international respect to the acquired rights regarding the movable property, the
declaration of which clarifies that Irans law differentiates the achieved right in a country, and its effect in another, since it only sets the rule
regarding the right gained in a country, and is reticent about the effects of the right in another. Hence, the effects should be deemed embedded
within the discussed general law, that is, the propertys present place. The seizure, possession and other rights directed toward the movable and
immovable property, obey the law of the country in which the object is located.39 Therefore, the inferable rule from the article 966 about the
dynamic conflict and the deduced rule from article 4 regarding the solutions of conflict-settlement in a particular time are identical from the
viewpoint of their consequence. In both rules, the individuals acquired rights are recognized officially, with the exception that in the temporal
conflict of the rules in the national law, the rules can be retrospective, and in dynamic conflict, thanks to the fact that the two conflicting laws
belong to two different legislative systems, retrospectivity is not possible. The principle of the laws instant effect is not deduced from the
mentioned rule but is the natural outcome of the principle itself.
In Iran, the dynamic conflict does not happen exclusively in movable and immovable property, but it also appears in the rules in which
nationality is a determining factor. To settle these rules, the solution is the same with that of movable property, specifically that these types of
rules correspond to personal status, to which the application of laws instant effect in a particular period of time seems more vital40.
31

Almasi, Najad ali, Private International Law, 140- 141

Almasi, Najad ali, Private International Law, 141
33
Almasi, Najad ali, Private International Law, 141
34
Almasi, Najad ali, Private International Law, 141-142
35
Almasi, Najad ali, Private International Law, 143-144
36
Almasi, Najad ali, Private International Law, 145.
37
Almasi, Najad ali, Private International Law, 146
38
SalJooghi, Mahmood, Private International Law, Vol 2, Tehran, Mizan Publications, 2010, 149
39
SalJooghi, Mahmood, Private International Law, 150
40
SalJooghi, Mahmood, Private International Law, 150.
32

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The Respect to the achieved Rights in the Internal and Internatioonal law
International Journal of Economy, Management and Social Sciences Vol(3), No (10), October, 2014.

Conclusion
1.
2.

3.

4.

5.

6.

The respect to the acquired right is one of the inevitable juridical principles; the law that is ratified and enforced must not nullify the
acquired right awarded by the former law. The acquired right arises from contraction and law it is a concession owned by the entitled
partys will and must be preserved from the fluctuations of time.
Law, as a source of right, is a general and permanent rule, neither bounded to any person or place nor limited to a particular time. This rule
should govern the society. The reign of law would be established through its enforcement. Therefore, mostly an indulgent law can rule the
society. The law is an unprecedented phenomenon enforced by the judiciary. The new rule is non-retrospective, but whatever happens in the
past remains out of its grasp and obeys the rule of the events time, unless it is formerly acknowledged or is crated due to a necessity.
The transference of power from the former to the new law gives rise to several issues. In addition, there are conveniences according to
which the enforcing law should be chosen. Without considering them, no proper solution can be reached regarding the settlement of the
laws conflict. During the past few centuries, it was assumed that the entire sophisticated issues would be resolved with the principle of
non-retrospectivity of the laws. In the 20th century, the critics figured out that not every single matter should be reduced to nonretrospectivity: the necessity of laws prospectivity, also, cannot be ignored. According to the principle of justice, an abolished law should
continue to enforce on a past event which is still in force in the present time. The totality of these three conveniences should be based on an
order so that, regarding the settlement of the laws conflict, the more convenient law is enforced.
Concerning the methods of conflict-settlement, the personal method, despite all its advantages, proved to have some shortcomings, the
resolution of which has been attempted in the consecutive reformatory theories. Compared to the personal method, the typical view is less
complicated, scientifically scrutinizing the events of past. However, in the latter method the respect to acquired rights has mostly been
ignored which may cause deleterious consequences. Thus, relying on a particular method might not be sufficient and a combination of
personal and typical should be utilized, the first step for which is to determine the events corresponding to past and those to the future.
Next, using the methods of conflict- settlement and considering the individuals acquired right, the attempt should be made to resolve the
conflict between the new and former law about the disputed matters.
Each countrys law is of domestic credit, ruling over the residents and properties within the boundaries of the country. In other words, the
people under the rule of a government along with their property, comply with a local law. However, the immigrants of other countries, from
the viewpoint of private property, obey certain laws. Such a conflict emerges when an event falls within the domain of several countries
law, a situation in which the supreme power of governments is consequential. The choice between the laws and methods that should litigate
the case are of the main subjects of international private rights.
The dynamic conflict of laws is a juridical relationship in two consecutive periods of time, regarding two different legal systems. The
question we face here, is to figure out which stage of the right's establishment does the conflict of laws occur in. Does this conflict
correspond to the initiation of the right or its enforcement? To fathom the difference of the two is of vital importance. Since in the first stage
the object of the exercise is to establish a competent law according to which the right should be formed and in the second phase, the aim is
to work out that to what extent the mentioned right should be respected or be the source of effects. In Iran, the resolution of the dynamic
conflict follows the pattern of solution for domestic transferrable rights. This can be inferred from the last sentence of the article 966,
originally dealing with the conflict of laws about the movable property, the transference of a movable property from a country to another,
cannot invalidate the legal rights that the individual has gained in the home state.

References
Alborzi Varaki, Masoud and Mohammad Mahdi Rahbari, A comparative study of Rules and Exceptions of Acquired rights, Majd Periodical 22, (2012): 122-151.
Almasi, Najad ali, Private International Law, Tehran, Mizan Publications, 11th edition, 2011.
Emami, Sayyed Hassan, Civil Law, Vol 4, Tehran, Eslamieh Publications, 21st edition, 2010.
Lameh (Dameshghieh), Trans. Ali Shirvani, Vol2, Qom, Darol Fekr Publications, 5th edition, 1996.
Katuzian, Naser, An Introduction to Jurisprudence, Vol 4, Tehran, Sherkat-e- Nashr Publications, 20th edition, 1995.
Katuzian, Naser, The Philosophy of Jurisprudence, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006.
Katuzian, Naser, The Philosophy of Jurisprudence, Vol 3, Tehran, Sherkat-e- Sahamie Enteshar Publications, 3rd edition, 2006.
Katuzian, Naser, A Step Towards Justice, Vol 2, Tehran, Mizan Publications, 1st edition, 2008.
Katuzian, Naser, The Property and Possession ,Tehran, Dadgostar Publications, 2nd edition, 2008.
Katuzian, Naser, The General Rules of The Contracts, Vol 1, Tehran, Sherkat-e- Sahamie Enteshar Publications, 8th edition, 2009.
Katuzian, Naser, The General Rules of The Contracts, Vol 3, Tehran, Sherkat-e- Sahamie Enteshar Publications, 5th edition, 2008.
Katuzian, Naser, The General Rules of The Contracts, Vol 2, Tehran, Sherkat-e- Sahamie Enteshar Publications, 1st edition, 2009.
Katuzian, Naser, Specified Contracts, Vol 1, Tehran, Sherkat-e- Sahamie Enteshar Publications, 10th edition,2008.
Katuzian, Naser, Specified Contracts, Vol 3, Tehran, Ketab khaneye Ganje-e- Danesh Publications, 6th edition,2008.
Katuzian, Naser, Specified Contracts, Vol 4, Tehran, Sherkat-e- Sahamie Enteshar Publications, 5th edition, 2006.
Katuzian, Naser, Pre-emption, Inheritance and Will, Tehran, Dadgostar Publications, 2nd edition, 2001.
Katuzian, Naser, The Temporal Conflict of Laws, Tehran, Mizan Publications, 4th edition,2010.
Mohammadi, Abol Hassan, The Rules of Islamic Jurisprudence, Tehran, Dadgostar Publications, 3rd edition, 1995.
Nahjul Balaqeh, Trans. Mohammad Dashti, Qom, Atr Agin Publications, 1st edition, 2007.
Safaei, Sayyed Hassan, Civil Law, Vol 1, The Individuals and Property, Tehran, Mizan Publications, 5th edition, 2006.
SalJooghi, Mahmood, Private International Law, Vol 2, Tehran, Mizan Publications, 2010
Sharh-e- Lameh (Dameshghieh), Trans. Asadollah Lotfi, Tehran, Najd Publications, 7th edition, 2009.
The Principles of Mozafar Islamic Jurisprudence, Trans. Ali Shirvani and Mohsen ghorurian, Vol 2, Qom, Darol Fekr Publications, 1st edition, 2009.
Zarei, Mohammad Hossein, and Massih Behnia, A Contemplation on the Possibility of the Application of Legitimate Anticipation available on www. Esr.ir.
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