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Saussurea (ISSN.

0373-2525)

Vol. 3 (2). PP:797-806

The proving freedom principle of trading with comparative study in


France trading law and its critic
Amin Fattah1, Dr. k. Kaviani2
1

Ph.D student of private law, Department of law, Arak Branch, Islamic Azad University, Arak, Iran
2
Department of law, Arak Branch, Islamic Azad University, Arak, Iran

Received: March 2015 & Published: June 2015


Abstract:
More attention to the social justice and uncover the truth, influenced on the rules of evidence and has created the
principle of the persuasion of proof as well as the social order and the importance of reasonable dispute settlement
have created the principle of legality of evidence in the common law; but in the commercial law of France, the
necessity of speed and reliability in business affairs, has provided the principle of freedom of proof as the minimum
effect (the removal of the restrictions of evidence by the court) and the maximum effect (equivalent to the principle
of the persuasion of proof ); the application of this principle has the two main requirements: 1) the disputes will be
business affairs, 2) 2-the reason for proving will be used against the merchant; This principle has as well as the
exceptions that the French legal thought will be criticized in the expression of exceptions. This principle has some
effects that the main effect is the removal of restrictions on admission of evidence in the field of the commercial
law; the status of this principle in the Iranian law has been some ambiguity in order to the historically and require to
the historical survey as well as the is seemly the despite the principle will be considered in the new draft Law of
trade of Iran and the draft of commercial of criminal procedure Act of Iran.
Keywords: evidence, proof system, Freedom of proof, Iranian trade Law, Iranian business law, French business law
requirements and the important cases were high
speed and ensuring in trading affairs compared to the
civil law beside many common fields it has many
features leading into the formation of general and
partial rules of trading affairs and because of this
some of the trading rules are different from civil
rules. These features are also found in proving rules
field and it caused that proving rules in trading law
have special features beside many common features
with civil rules. The special proving rules of trading
offices are some examples in this regard. Thus, the
author believed that the features of trading law are
effective not only as partially but also as general on
general rules of proving of trading law and this effect
is mostly observed in France trading law. The lack of
limitation and freedom of proving in France trading
law is raised and it is one of the most important
features of proving system in France trading law
compared to civil law proving system. The position
of this important principle in proving system of Iran
trading rights in the current conditions with the
absolute ratification of the new trading law and the
trading law is presented to the parliament and it is of
great importance and critical view to this principle
even in France law can be useful for the legal thought
of the country and the international trading law
issues. The concept of freedom principle of proving
and its comparison with the legality principle and
morale principle of proving reason of the proving

1. Introduction
As there are general rules in proving rules with
organized relations, it is expected that the rules of
claim proving have some general rules with the same
structure that can be turned into a proving system in
which the rules of each proving reasons beside the
general rules can be useful. In other words, the
general rules beside the special proving rules can
form a system. 1 If we have a systematic view to
proving system of proving rules, some principles
have the main role in the formation of this system
and have important role in regulating the whole and
partial general systems. One of the cases is
determining the basic view in this regard that whether
proving rules are used completely in the rules and all
the people are required to act in accordance with the
same legal rules or the rules styles are as some
general rules are formulated and the people
requirements, judge and claim parties are open to
discover the reality? In law systems namely Iran and
France law system, the style is taken in which its
effects are observed in law making of proving rules.
In law doctrine and thoughts of proving rules, and
proving reasons regarding the legal proving method
and morale proving method, the considerable issues
are observed in Iran and France law. Trading law is
effective based on forming history and the effective
1

Encyclopdie juridique, rpertoire de droit civil (R.D.C), la preuve, paris, Edition Dalloz, t.8, 1999,n

797

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system can be in accordance with its aims and the


methods. Certainly, if a proving system can seek the
reality, its method is different from the proving
system to solve the enmities. As it was said in the
previous parts in trading law, we search for speed and
assurance and its proving method should follow such
basic and aim. The influence of proving method from
the aims of justice, social order and reality
discovery basics and enmity resolving and the
review of the position of speed, simplicity and
assurance in proving method of philosophy of each
law system show the aims in which the law system
should follow them. Among all the thoughts that are
raised, it can be said that achieving justice (or
social justice) and order (social order) are the main
aims of law systems.2 Some issues are raised about
these two aims and the contradiction between them
and considering them can be effective in all parts of a
legal system. There are many definitions regarding
the concept of justice and social justice and one of
the important issues is raised in Greek philosophy
theories (Plato) and in Islamic theorists (source: The
words of Imam Ali that is referred to the difference
of the meaning of generosity and justice) and it is
giving all the rights of the real owners of rights. In
other words, putting everything in the exact place and
giving the rights to the people are the main meanings
of justice. There are other meanings about justice and
it is being pious and not doing any great sin, not to go
to extreme and being moderate and all the definitions
have complete relation with the truth. In other words,
the truth is the basis of the definition of justice.3It can
be concluded that in the legal systems, just principles
should be formulated to establish justice and if the
legal orders determining the principles of social life,
these principles should be supported. Namely when
there is a claim about abolishing the just verdicts and
the right should be given. Thus, its object as a legal
event should be proved. It can be said that achieving
the right based on the just verdict requires proving
the fact of the event that is occurred and it is called
real fact and it is the reality that is occurred as legal
event and it creates a space to present the verdict and
there is legal reality and it is the event that is in the
mind of the judge after finishing the proving system
task in legal claim as the event that is occurred.4If the
legal system is seeking the social justice, it should
seek for the real fact in the proving part and the
proving mechanism should be such that legal reality

is mostly in accordance with the reality. It can be said


that by the aim of achieving the social justice, the
basis of proving system in legal system of a country
is discovery of reality and all the mechanisms and
proving method should be regulated with the basis of
discovery of reality. Social order is another important
aim that legal systems search for it beside the social
justice. Some issues are raised about the
contradiction between these two aims. For example,
regarding the response to this question that if in
planning a part of legal system, there is a
contradiction, which aim is on the priority? In some
of the legal thoughts, it is stated that justice is an aim
and order is the tool of achieving this aim and order
helps to establish the justice and there shouldnt be
any contradiction theoretically between them.5If the
legal thoughts are viewed as generally and if we
consider the rules as contradiction in the mind with
custom, sometimes the contradiction between social
justice and social order (social order that is accepted
as social order due to the acceptance of the majority
of people), it can be considered.6If we consider the
social order based on the above explanations in
proving system, we can consider enmity resolving
as a basis in proving system. In fact, social order in a
legal system can create the basis of enmity
resolving in proving mechanism. Each of the
mentioned basics had some effects on the interaction
of proving system and accepted the proving methods
and proving reason with the related features. It seems
necessary to mention some of the effects of these two
bases on proving method. The effect of reality
discovery basis in proving system-Indeed this basis is
one of the main bases of proving system and the main
aim is that the legal procedure achieves the objective
reality as rapidly and with the minimum costs.7Based
on the aim of the basis of discovery of reality and its
concept, some issues are raised that can be created in
the mechanism of a proving system and it is
mentioned in the definition of proving ways. 1- The
element of Ekhbar in the concept of defining
proving ways: Some of the requirements of this basis
are such that one of the principles of definition and
nature of each proving method is its expression of the
events. 2- The lack of certainty and finishing the
claim, 3- giving the right to the judge in achieving the
reason, 4- Accepting various proposed reasons
(namely the reason that is presented by the progress
of the science): By the aim of discovery of the reality,
it can not be expected that the law defined some of
the methods as exclusive and try to use the same
reasons for proving. 5- The possibility of evaluation

There are many references in this regard as : Nazarinejad, Mohammad Reza, Justice with the order based on reasonability- The
political-economical information journal-Bahman and Esfand 2002-No. 185, 186, p. 80 to 93 and Daneshpashuh, Mostafa, A review
of law aims in Islamic law system. Basirat journal. No. 35.pages 7-20.

For more information see the following articles: Jalinus, Ahmad- Najafpour, Sara, The concept of justice in Islam and the west,
political sciences, political knowledge, summer and spring 2007.No. 5. Pages 99 to 128/-Haji Heidar, Hamid- The comprehensive
review of the concept of justice from the view of Islam-Political sciences, political knowledge, fall and Winter 2009, No. 2, Pages 726/Haji Heidar, Hamid. The need to the concept of social justice. Figh and Osul. Islamic government. Fall 2010. No. 57. Pages 37-62

Encyclopdie juridique, rpertoire de droit civil (R.D.C) , la preuve, paris, Edition Dalloz, t.8, 1999; n.56.

Fatah, Amin, The principles of proving system in special law (with comparative study in Islam and France law). MA thesis. Imam
Sadiq University 2006-2007-Pages 7,8. Such name is also referred in Egypt law: Ahmad Alsanhuri, Abdolrazeq-Al-Vasit Fi sharh AlQanun Al-Madani Al-Jadid 2-Nazarie Al-Eltezam Bevajhe Ame Elsebat. Asar Al-Eltezam. Beirut: Dar Ehya Al-Toras Al-Arabi.p. 27.

The author in this part believes that social order and social justice should be interpreted as there is no contradiction between them
and it can be said that just order is the criterion of an organized society and achieving such stage is very hard and it needs more
attempts.
7

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Encyclopdie juridique, rpertoire de droit civil (R.D.C) , la preuve, paris, Edition Dalloz, t.8, 1999; n.56

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of the reason by the judge: The judge should


investigate any reason and consider the proving value
based on the conditions of the problem as he is
convinced in discovery of the reality.6- Hearing the
opposite items of the reason n: it can not be
considered the absoluteness of the claim and decision
making after it due to their nature for proving reasons
and the opposite reason should be permitted.8
The effect of the basis of enmity resolution in
proving system: With the aim of considering the
social order and enmity resolution, finishing the
proving stage and absolute decision making to the
claim should be considered seriously. With such
basis, we can achieve the features creating some
features in proving system opposite to the discovery
of the reality. 1-The presence of Ensha element in
definition or nature of proving method
2Absoluteness of the claim by the presented proving
reason.3- Determining the limitation of the reason
and proving method and their definition and proving
power of each of them. 4- The lack of ability of the
judge in achieving the reason. 5- The lack of
evaluation by the judge, 6- The lack of hearing the
opposite reason of some of the presented proving
reasons, 7- The last stage of being a proving method
in proceeding process.9In proving system of all the
countries with the reason of giving importance to
social justice and social order, the reality discovery
basics and enmity resolution are effective in proving
system mechanism and there is a mixture of the
features of both of them in proving system. The
difference is that based on the importance and
priority of each of them based on the underlying
philosophy on law system and considering the time
and place requirements, considering one basis from
the view of some of its features is on the priority. In a
proving system and by the definition and nature of
each proving method, one or both of the bases are
considered.10 In trading law, the main factor creating
the special rules in this field to civil law is the speed
in trading affairs 11 and trading transaction. The
considerable speed is criticized and with this growth
it requires some mechanisms in law systems (namely
in the countries with considerable growth of trading
affairs). Thus, in some countries like Roman-German
law family and most of the countries with Islamic law
system (including Iran), one of the strategies is
formulating separate rules regarding the trading
affairs and most of the rules are formed inspired by
trading law of France in 1807 (Napoleon trading
code12) and it was revised later. The speed factor and

the need to security (assurance) and simplicity of


formulating the rules were effective. Regarding the
proving issue s of trading rules, the speed factor can
show itself in the form of breaking the proving
formalities of civil affairs. In other words, social
justice and social order are important for the trading
law maker. However, beside these aims-not in
contradiction with these aims-the aim of achieving
the extensive trading creates the basis of speed and
simplicity in formulating the proving system of
trading law and social justice aim creates the basis of
reality discover and accuracy and social order
aim creates assurance basis and enmity
resolution for trading law proving rules. In other
words, trading law proving rules by considering the
bases of speed, simplicity, reality discovery,
accuracy, assurance and enmity resolution are
formulated. It can be said that the priority between
the mentioned bases was important and in case of
custom contradiction probability, this priority should
be observed. By considering the mentioned bases,
speed and simplicity factors can require some rules
being the best in trading law. In fact, the reality
discovery bases and enmity resolution create two
discrete proving methods and speed basis accepts a
mixture of these two methods being close to the
speed basis. The concept of proving legality principle
(restricted proving method), the morale principle of
proving (absolute proving method or judge morale)
beside the freedom principle of proving and based on
the mentioned items regarding the basics of proving
systems and based on this basics, two discrete
proving methods are created and most of the legal
systems selected a mixture of these two methods
based on their aims. The two proving methods are
including: 1- The legal proving method (Proving
legality principle)13, 2-Morale proving method 14 (in
some translations it is translated as morale or the
morale aspects of proving). Here the concept,
advantages and disadvantages of the two proving
methods are presented in summary and the concept of
proving freedom principle in trading law based on its
basis beside these two proving methods and its
relation with two principles are expressed. Legal
proving method-The features of the proving method
are including three parts:1- The exclusive rules and
proving methods are considered and they are defined
as out of reasons and another affair can not be
considered as proving reason. 2- The law maker
defines the definition, principle and accuracy
conditions of any exclusive reason and it is defined
that in which conditions, it can accept. 3- The law
maker defines the proving value of each reason

Fatah, Amin, The principles of proving system in special law (with comparative study in Islam and France law). MA thesis. Imam
Sadiq University 2006-2007-Pages 6-14 .

Ibid, pages 14-20


10
Ibid pages 21-88. It can be said that in the mentioned pages of the thesis based on the definition of each of proving methods in each
of Islam law systems, Iran and France, the influence method of reality discovery basics is mentioned in detail.
11
la rapidit des transactions
12
Napolon said I and my occupations are mortal and these codes (the set of the formulated rules) remain: Dr. Fakhari- Pamphlet of
trading law 1(Generalities, merchants and trading affairs)- Provided by scientific association of Islamic knowledge students and law
students of Imam Sadiq University. Page. 3.

13
14

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preuve morale (ou le principe moralit de preuve)

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seriously. The fact that how the judge can be


convinced by the accepted reason; defining such
proving ability defines one priority among the
reasons and it resolves the problem in proving
reasons contradiction. 15 This proving method has
some merits and demerits and some of the benefits
are: 1- The speed of considering the claim (resolving
the enmity), 2- Simplicity and accepting the task
process in this method, 3- More safety in proving
system. The demerits are including: 1-Indifference to
reality discovery, 2- The lack of using new proving
methods, 3- Formalities of proving process, 4- The
difficulty of proving in legal events (specific
meaning), .16. The basis of this proving method is
inspired by enmity resolution. IN such method, the
aim of war of two parties in proceeding and
contradiction and evaluation of the reasons by the
judge is not the discovery of the reality and it is
imposing peace and resolution of enmity. It is
guaranteeing safety and simplicity and its ruling on
the problem of seeking the reality.17
Morale proving method: In this proving method,
everything that can help to convince the judge as the
agent of legal system in judgment can be important in
proving system. Some of its features are 1-Reasons,
ways and proving methods are not determined
exclusively and any reason or method that can help to
convince the judge to proving object can be the
proving reason. 2- Based on the previous feature, the
definition, concept and their accuracy and expressing
the acceptance of proving reasons are not
meaningful. 3- Giving importance to proving ability
of each reason is not good in this method as any
method helps to convince the judge in each case, the
proving ability is also created in the mind of the
judge. This proving method has some merits and
demerits, some of the important merits of this
proving method are including 1- Being close to the
real fact discovery, 2- Using new proving methods,
3- Better proving of legal events, 4- Being close to
the real convincing of the judge, .Some of the
demerits of the proving method are: 1- The severity
of the adverse effects of probable deviation of the
judges, 2- Confusion of claim parties and people
namely in transaction. 3- The lack of true prediction
of the results of proving stages. 4- The different
understanding of the reality.
If the aim in this proving method is convincing the
judge from the reality of the event that is occurred,
the main basis of this proving method is discovery of
reality. 18 In legal thoughts namely in France law,
there are some theories about the proving methods.

The legal proving is opposite to morale proving and


if some issues are raised regarding the trading affairs,
the free proving method principle or proving freedom
principle are considered and in they are observed in
some of legal thoughts and free proving method is
considered equal to morale proving method.19 Based
on the basic law thoughts namely in France la w, it
can be said that there are some difference between
proving freedom principle and morale principle of
proving. In legal thoughts, some of the differences
are mentioned and when the proving in trading affairs
is considered, freedom principle of proving is
considered instead of morale aspects of proving.20It
seems that the reason of these differences is the basis
of these two proving methods and if the bases are
compared, some of the differences in legal thoughts
are considered. Regarding the morale proving
method, it was said that the basis is discovery of
reality and this is provided via the aim of
convincing the judge. Regarding the proving
freedom principle that is considered more in trading
law, 21 the important case is that there is no restriction
in this principle in accepting the proving reason in
trading affairs and the lack of ban in accepting the
proving reason is proving freedom and it is
considered a principle in proving trading affairs and
trading claims. Indeed, based on the restrictions on
accepting the proving reasons and methods 22
generally in proving system of civil law of France
law (the origin of proving freedom principle in
trading affairs), namely regarding the certifications
and due to the requirement for the written document
in most of the financial claims, there was no
possibility of using most of the proving methods in
trading law with financial issues and this issue is in
contradiction with speed basis in trading law and it
made the tradesmen who searched for high speed of
trading tired and based on the speed basis in trading
law and proving special proving tools that are used in
trading law space (trading offices), the restrictions of
accepting proving reasons in trading law are removed
and by removing the restrictions, it was considered
proving freedom principle. Indeed, the proving
method that was created in trading law tried to keep
the speed of the trading of the tradesmen and the lack
of barriers during the trading (from the view of
proving predictions in future) and it could decreased
the trading speed, not seeking the legality of proving
methods or try to convince the judge. Based on the
explanations, it can be said that proving method in
19

Ahmad Al-Stehory, Abdolrazaq-Al-Vasit Fi Sharh Al-Qanun Al-Madani Jadid 2, page 27.


-"Le droit commercial. _ S'il est communment admis qu'il est soumis au rgime de la libert des preuves, il ne faudrait pas pour
autant le ranger, comme le droit pnal, dans le domaine de la preuve morale. Il s'agit bien d'un rgime lgal mais considrablement
assoupli du fait que les tmoignages et les prsomptions y sont placs sur le mme pied que l'crit. Les modes de preuve sont
nanmoins ceux du droit civil et l'administration des preuves se fait comme en matire civile dans le respect des rgles du Code
judiciaire. Il existe, au surplus, des secteurs du droit commercial qui ne bnficient pas du rgime de la libert des preuves et dans
lesquels la prminence de l'crit reprend son empire.": Mougenot, Dominique- Droit des obligations, La preuve Bruxelles:
Editions Larciedr- 2002, p.65
20
Ahmad Al-Stehory, Abdolrazaq-Al-Vasit Fi Sharh Al-Qanun Al-Madani Jadid 2, page 27.
21
For example in prevue issue, one part is dedicated to proving freedom discussion after proving from law encyclopedia of France
trading law (source).
22
Recevabilit des diffrents procds de preuve
20

15
Encyclopdie juridique, R.D.CIV., la preuve, n19.
16
Fatah, Amin, The principles of proving system in special law (with comparative study in Islam and France law). MA thesis. Imam
Sadiq University 2006-2007-Pages 91-96 .
17
Katuzian, Naser. 6,13- The proving and reason of proving, Tehran. Mizan. Fourth edition 2006. First Vol. Page 26.
18
Fatah, Amin, The principles of proving system in special law (with comparative study in Islam and France law). MA thesis. Imam
Sadiq University 2006-2007-Pages 97-104 . 18 Ahmad Al-Stehory, Abdolrazaq-Al-Vasit Fi Sharh Al-Qanun Al-Madani Jadid 2, page
27.

800

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trading law tries to keep the trading speed and the


lack of contradiction with it and it is mostly
considered in the lack of barriers in accepting various
ways of proving and it is called free proving23. It is
possible that in the second priority, it discovers the
reality or resolve the enmity and it can be said that
free proving method in trading law in case that there
is no contradiction with speed basis is in accordance
with the legal proving method. For example one of
the features of legal proving method is the definition
of the nature and principles of proving reasons and
defining the rules in detail. It can be said that in
trading law, there are special proving tools such as
trading offices and if their definition, nature and their
proving ability are defined in detailed it is in
accordance with the rapid resolution of enmity and
legal proving method and not only it is in
contradiction with speed basic in trading law, it helps
it and the tradesmen are saved from being confused
in providing the trading offices. It can be said that in
France law in which applying free proving method in
trading law is considered, there are complete rules
regarding the trading offices and this is because the
basis of free proving method in trading law is the
speed in trading not reality discovery. Thus, the
general and specific relation is considered between
this method and two other methods in civil law (even
in penal law that is mostly based on morale aspects of
proving method), it can be said that the law makers
who consider morale proving method equal to free
proving method in trading law are wrong. Regarding
the exact meaning of freedom principle of proving,
there is no definite definition in legal doctrine of
France and as it was mentioned before, it seems that
it is mostly removing the acceptable barriers of
proving. If any person considers the limitation in
accepting the proving methods as necessary in
defining the features of legal proving method, the
proving freedom principle is opposite to restricted
proving method. Removing the limited meaning of
proving freedom principle in trading law is occurred
in the existing legal thoughts of France law. Based on
the over mentioned item this meaning is inspired of
the basis of the proving method that is speed while
this basis is not defined in any of legal thoughts and
more general results and meaning are achieved of this
principle and beside removing the limitation in
accepting proving is removing other legal barriers in
proving method or some of the barriers. Such as
removing the exclusion of the counting of proving
reasons and free use of proving methods, the lack of
priority in determining the proving value of various

proves methods. If the proving freedom is interpreted


with this view, it can be said that the results of this
principle are equal to morale proving method. It can
be said that the lack of exclusion of proving methods
and using all the methods is applied in morale
proving but can be in accordance with the speed
basis. Because using any method that can help the
progress of trading affair increases the speed. Both in
France and Iran law, the proving reason of Emarat
as one of the proving ways caused that all the proving
methods not only as a separate reason but also as
legal Emarat in claim proving reason by considering
all the rules of Emarat can be used. In France law,
this is not considered completely. It can be said that
proving freedom is removing the barriers of
accepting proving methods and the answer to the
question that whether other proving methods instead
of the methods expressed by the law maker can be
used (where the proving method is legal in this field)
is under the question and it is not answered well. As
it was said, if the private law proving method in a
country is legal and proving freedom principle is
used in its trading law, not method in trading law is
used as an independent proving method (or it helps
the more speed of trading and it is away from legal
proving method) and if the proving method of a
country is based on morale in trading law and with
proving freedom principle, beside removing the
limitations of proving acceptance, any method is used
as proving method.
Based on the mentioned items, it can be said that
some of the law makers try to consider morale
proving method equal to free proving method in
proving issues of private law while the basis of free
proving method in trading law is the speed in trading
affairs and this free method depends upon other aims
and priorities in a system and it can be inclined to
legal proving method or morale proving method. The
reason that speed basis is shown in removing the
limitation is the fact that the technology is updated
gradually and new instruments should be used in
trading and if these instruments are not used when
needing the claim proving (that can be occurred),
they can not be used indeed and its up to date
technology is not used in trading affairs and it is in
contradiction with the speed. It was said that in legal
thoughts, without considering the basis, they have
extensive meaning of proving freedom principle and
the results are equal to the results of morale proving
method in this meaning. As it was said in the
importance of proving reasons in the Holy Quran, the
longest verse is dedicated to proving issues and
proving reasons. 24 This verse is full of many
important points regarding the proving issues and it is

23
En matire civile, la preuve est soumise des rgles contraignantes. En particulier, l'article 1341 du Code civil prvoit que tout
contrat excdant une
somme fixe par dcret (dcret du 15 juillet 1980 modifi en 2004: 1500) doit tre prouv par crit. En matire commerciale, c'est la
libert de la preuve qui prvaut, rendant admissibles un grand nombre de modes de preuve.": Annie Chamoulaud-Trapiers- Droit des
affaires-Editions Bral, 2007 - 223 pages- page:28.

24

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Verse 282 Al-Baqare

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regarding the written a contract regarding the debt


transactions (O, you who believe! when you contract
a debt for a fixed term, then write it down.). Good
discussions are mentioned about this verse and its
meaning in Fiqh and Foqaha consider this verse as
guiding and it is not an obligatory order and if it is
not done it is sin and it is punished in the other life
but this interpretation is due to the difficulty of
proving a written contract in the past and this part of
the verse show the difficulty of proving written
document at least about fixed term transactions. At
the end of this verse, it is stated that if transaction is
in cash that you use, it is not required to write the
contract. It can be said that if a contract is written in
the existing trading, it is difficult while it doesnt
have proving benefit but it decreases the transaction
speed and this verse has permitted that if such written
contract is not provided in such case25, by accepting
this analysis (that is a guess not interpretation), we
can say that it seems that a far meaning of proving
process in trading affairs is observed in the Holy
Quran and its effect is the freedom of proving and
removing the acceptable limitation of the reason.26

words, before 2000 (and ratification of new trading


law of France) there was not legal text referring to
this principle and one of the main problems of the old
trading law of France is that there was no definite
text about such principle and there is no separate part
related to proving issue in trading law in France
trading law. Thus, only in article 109 of the old
trading law of France, there was a simple explanation
being inspired of such principle.30 This freedom was
raised among the merchants and trading affairs and
when there was a trading task between the merchant
and non-Merchant, it was not considered from the
view of trading parties and it was not applied as a
principle. 31 These problems were removed in the
recent rules in France and now in article L110-3 of
France trading law, it is expressed that considering
the merchants, the trading affairs can be proved by
any method unless the law defines other conditions.
Generally, the proving freedom principle of trading
affairs and to the merchants is defined in a principle.
However, regarding the relations between the
merchants and non-merchants, the limit of this
principle should be reviewed. Later the way to apply
this rule in the relations between the merchants and
the merchants and non-merchants is reviewed. It can
be said that in trading affairs, there are some
exceptions in this principle and some of the examples
are presented.

2. The review of the proving freedom principle in


Iran and France law
In private law proving system if Iran based on the
proving methods features, it can be said that mixed
proving method as the mixture of legality and morale
principle of proving reason is used. But the legality
principle is the dominant proving.27 Like Iran law, in
proving system of private law of France, it can be
said that it followed legality proving method at first
but by some changes, the morale principle scope is
more extensive. Based on the strong legal procedure
in France law and the partial rules, there is a good
balance between legality and morale. 28 One of the
most important features of legal proving method is
the limitation of acceptance of Emare and
certification and it is discussed more in legal
thought.29 The review of proving freedom principle in
France trading law-In France civil law and about
proving rules to accepting various proving methods,
general and specific limitations are considered
namely about Emarat and intuition. This caused that
new methods are not used with technology progress.
Thus, proving freedom principle is used in France
trading law and some of the limitations of proving
methods are removed with indefinite terms. In other

3. The review of the existence of proving freedom


principle in Iran trading law:
Based on the main features for proving freedom
principle in trading law, it was removing the barriers
in accepting the proving reason, in Iran law it can be
said that before the reformation of 1991 with the
limitations of accepting the proving reasons generally
in civil law (in articles since 1927 of civil law), there
was no statement in trading law regarding the
freedom of using various proving methods and the
limitations of using proving methods were
formulated like France law in Iran and there are no
exceptions to these limitations in Iran trading law. As
in proving system issue and general rules of Iran law
proving system, some rules in France law are used, it
can be said that why these proving rules are based on
France civil law in Iran civil law and removing the
limitations in Iran trading law that is inspired more
by France trading law than civil law is not existing.
The reason is mostly due to the historical condition of
formulating the rules in Iran. The current civil law in
Iran is including one introduction and three volumes.
The first volume (property) ratified on 1928 of
national council parliament. Based on the views of

25
Faktobuho, Ay Aktobu Al-Din Leanaho Aosaqo Belnasabe Ela Saheb Al-Haq Valmadyun, Valshahid Ayzan, Va Fihe Maslahato
Al-Din Vadonya Lahom Moqadas Ardebili, Ahmad Ibn Mohammad-Zebdolbayan Fi Ahkam Al-Quran-Tehran: Maktabelmortezavie
Leahya Al-Asar Al-jafarie. p. 441.Leanaha Tavasoq Belketabe Beetebar Kone Avazeha Mojelan Men Shane Al-Estisaq Belketabe
Movafeqa Leqole Taali(1) Eza Tadaytom Bedine Ela Ajale Mosama Faktobuho. Najafi, Mohammad Hassan (Saheb Javaher)Javaher Al-Kalam Fi Sharhe Sharael Eslam. Vol. 34. Tehran: Dar Al-Kotob Al-Eslamie. Sixth edition. 1398.p. 252.
26
Va Hazal Mabda Fighhi Al-Hadis Alazi Qararte Al-Tashari Al-Madine Val-Tejarie Al-Moasereh, Fi Ebahe Al-Esbat Fel Mavad AlTejarie, Qad Jaa be Al-Quran Al-Karim, Faqala Taali Ala An Takun Tejare Hazere Tadyaruneha Baynakom Falaysa Alaykom
Jenah Ela Taktobuha: Al-Momen, Hossein-Moqaren discussion: Al-Esbat Fi Al-Mavad Tejarie- Al-Qeza journal, Al-Sena Alhadie
Alashar, Kanun Al-Sani 1953, No. 1, p. 4.
27
Katuzian, Naser, proving and proving reason. Vol. 1, Pages 27, 307/Shams, Abdollah. Civil proced ure. Vol. 3, p. 88/ Fatah, Amin,
The principles of proving system in special law (with comparative study in Islam and France law). MA thesis. Imam Sadiq University
2006-2007-Pages 110-113 .
28
Fatah, Amin, The principles of proving system in special law (with comparative study in Islam and France law). MA thesis. Imam
Sadiq University 2006-2007-Page 116 .
29
The articles since 1341 of civil law of France.

30

Lart. 109 de lanc. c. com. : Les achats et les ventes se constatent : par actes publics, par actes sous signature prive ; par le
bordereau ou arrt dun agent de change ou courtier, dment sign par les parties ; par une facture accepte ; par la
correspondance ; par les livres des parties ; par la preuve testimoniale, dans le cas o le tribunal croira ladmettre
Encyclopdie juridique, R.D.COM., la preuve, p.5, n46.

31

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enlightened people in Iran due to the lack of progress


in law making, the emphasis on law making with
civil law was started with properties as the main
problems of people. The second volume of civil law
(about people) and third volume of civil law (claim
proving reasons) consisting of proving rules was
ratified in 1934, 1935. The current trading law in Iran
was ratified in 1932 and during the ratification of
trading law of proving rules of civil law and the
limitations in article 1927, there was no limitation
and these articles were ratified later and removing
the limitation that did not exist was meaningless.
After the ratification of civil law and in later
reforms, there was no revision in trading law but in
1991 and in some principles the existing barriers in
civil law were removed generally and it was not
required that trading law remove the limitations that
were removed already. Now there are some
limitations about accepting the proving reasons in the
rules of private law (like the lack of accepting the
reason except the formal document for the issues
requiring the proving of non-asset ownership
registered in formal documents office) and it is
possible that such limitations are created as partially
in the future rules.
Thus, the review of proving freedom principle in
Iran trading law (even in the current condition) is
useful and it can have serious effects and if such
limitations are occurred in the future reforms of civil
law, such researches are useful and some reforms are
made in trading law. In the new proposed bill of Iran
trading law that was presented to the parliament to be
verified after the finalization in legal and law
commission of Islamic council parliament (And after
being sent to Guardian council , it was returned again
to the parliament due to the problem of its pilot form
and the commission emphasized on its necessity)32.
Also, in the new bill of trading proceeding (that
was sent from the government to the parliament on
2011) in its fourth chapter (from articles 1981 to
2000), the reasons are reviews and nothing is stated
about proving freedom principle in trading law and
removing any limitation and only the legality of
proving as the proposed reasons should be selected
among the legal reasons and be proposed in the court
33
that is in contradiction with the freedom principle
of proving and it is opposite to morale principle of
proving method. The ruling conditions of proving
freedom principle in trading law. There are some
discussions about the conditions of this principle and
as such principle is used as organized in France law,
it is required to use the rules of this law system in

referring to the required conditions for the ruling


nature of this principle.
In article L110-3 of the current trading law of
France law, in a short sentence, one of the main
results of this principle as removing the limitation in
proving reason formalities was mentioned and two
conditions are mentioned. Proving subject is trading
issues. 2- The proving party is a merchant. Based on
two conditions, each of them should be reviewed.
4. The proving subject is trading (Les actes de
commerce)
The trading affairs term is not defined in Iran trading
law and trading transactions are defined in article 2 of
trading law. It can be said that trading affairs are the
items mentioned in article 2 of trading law and it can
be said that with the negligence in article 14 of
trading law, instead of using trading transaction,
trading affairs are applied. By this view, the changes
of new bill of trading law are accepted because in this
b ill and article 104, it is stated that trading offices in
the claims of trading transactions are referred and
again in article 1 of this bill, the term transaction is
not used and the term application is used and it is a
partial problem in trading law bill. Indeed, both in the
current law and the bill draft, there is no coordination
in using the same word to define the trading activities
and the term that is used in the proving issue of the
offices and this is due to the negligence in using the
terms. It seems that using the term transactions is
not true both in definition of commercial activities
and referring to the special documentation of trading
offices because most of the commercial activities are
a job that can be a combination of legal events
including legal acts and events and their activities are
one-way (Iqaat) or based on multi aspects or the
contracts and transactions. Thus, using the term
transaction consisting of a part of legal activities is
not true. On the other hand, using trading activities is
more suitable and literally it is equal to the French
term faits commercials. It should be considered that
its translation to trading activities is mixed with the
specific meaning of legal activities vs. legal events
and it shows the trading contracts while it means all
the activities that are manifested as a job and position
for a person and its translation to trading activities
or trading affairs is suitable. It is possible that a
trading affair (trading activities) is done from a
merchant but not due to the trading job needs but for
his personal affairs. For example, issuing money
order is commercial and it is possible that a merchant
does it for his personal requirements not due to the
need in his trading job. This question is raised that is
there.
The first condition to execute the proving freedom
principle or not?

32
The various forms of new bill of trading law and other bills can be accessed completely with the text and other features in Islamic
council parliament site (http://rc.majlis.ir/fa).
33
Article 77, trading proceeding bill presented to the parliament: Each of the parties can determine special reason of the sum of legal
reasons as the reason of proving their claim before the proceeding or during the proceeding. Thus, the court based on the same
reasons, issues its verdict: The bill text is available in Islamic council parliament site.

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and the judge of the case is expected to consider the
ruling of this principle and its terms.37

It can be said that as proving freedom principle is an


exception to the civil proving principles, its good
interpretation is required and it seems that its proving
doesnt follow this principle. It can be said that if this
issue is not for the benefit of commercial activity, it
can be raised as it is done to meet the personal
requirements it paves the way for misuse. In France
law, in legal procedure, the proving freedom
principle is not accepted. 34

6. The effects of proving freedom principle in


trading law and its scope
The main effect of proving freedom principle as it
was said in its basic forms is removing the proving
limitations existing in the civil proving rules. Based
on the speed basis in trading law, removing the
limitations is interpreted as removing the limitations
of receiving the proving reason and the merchant can
use the most rapid methods in commercial activities
and it has no concern of the barriers of proving
acceptance and removing this barrier is interpreted
with the basis of reality discovery and in this way
interpretation of proving freedom principle is equal to
proving morale principle. Briefly, based on various
basics, two interpretations are considered for this
principle, one is removing the limitations of
accepting various proving methods and another one is
removing the legal limitations in proving method
from various aspects. Based on the explanations, it
can be said that from the legal procedure and legal
thoughts, the famous interpretation of the law makers
of this principle in trading law is removing the
limitations of accepting various proving methods.
One of the important points is the necessity of
mixture of the limitations of accepting proving
methods as formalities in proving the right. In legal
events, namely in the contracts being considered as
legal activities, some of the affairs are considered as
formalities in legal activity occurrence. In all the
contracts, acceptance occurrence is one of the
requirements and if a contract needs formalities more
than acceptance, namely the formalities that if they
are not performed, the contract is not true, this
contract is the formality contract. In unilateral legal
act (Iqaat) other formalities are required for unilateral
legal act occurrence, it is formalities of Iqaa. In
divorce unilateral legal act (Iqaat), the same terms are
true and in contracts such as insurance contract
(based on insurance law ratified on 1937), collective
promise of labor (based on article 140 of labor law
ratified in 1990), formation of commercial
companies, transferring the shop ownership right
(based on the law of the relations of owner and tenant
ratified in 1977),38
A major set of these formalities (the formalities in the
rights), the formalities of creating commercial
benefits and if they are not observed, the person loses
some of the benefits being defined in trading rights
like the terms to issue
commercial documents

5. The proving party is a merchant (A l'gard des


commerants)
In the past, this principle was raised as the proving
issue is raised among the merchants and it means that
al l the proving parties are merchants and if one party
is not a merchant, the difference was considered
between the case in which proving is done by the
non-merchant against the merchant and if the proving
is done by the merchant against the non-merchant. In
the new literature of law in France, this condition is
expressed well and it is stated that proving of the
merchant is in the case in which the proving subject
is among the merchants and in the case the non
merchant is against the merchant. It can be said that if
the proving object is a trading issue, the proving
against non-merchant, civil proving rules should be
followed because it doesnt have the second
condition and in France law, the article 1962 of civil
law are used.35 Another result of this condition is that
if the proving object is a commercial issue and it is
raised among the merchants, the proving freedom
principle is performed; any method is used for
proving. If the proving parties are merchants and
non-merchants and legal event is occurred, they are
considered as mixte from the view of the two parties
and if the proving is done from the non-merchant
against the merchant, proving freedom principle is
used and if the merchant tries to be against the
merchant, the civil proving rules (including the
conditions like the terms in article 1962 of civil law
of France) should be used. This result is achieved of
the accuracy of the terms of the principles and it is
mentioned explicitly in the legal procedure of France
law. 36 It should be said that fulfilling the ruling
conditions of proving freedom principle in trading
law and comparing it in the file in the court is a claim
in terms of verdict not in terms of the object and the
court should consider this issue and the Supreme
Court should consider it in Driot issues with the same
meaning of claim verdict directions (or observing the
rights) and it can be reviewed by the Supreme Court
34
Il convient toutefois de noter que la rgle ne joue que pour les actes de commerce passs par un commerant pour les besoins de
son commerce (Com. 19 janvier 1993, Bull. civ. IV, n 21). Lorsque l'acte est tranger l'exercice du commerce, ce sont alors les
rgles du droit civil qui trouvent s'appliquer (V. civ. 1, 2 mai 2001, bull. civ. I, n 108)": Annie Chamoulaud-Trapiers- Droit des
affaires, p.:30.

37

Jos Lebre de Freitas- Beweisrecht in der Europischen Kluwer Law international, 2004, page 155.

35

Annie Chamoulaud-Trapiers- Droit des affaires, p.30.


36
Annie Chamoulaud-Trapiers- Droit des affaires, p.30.

38
Katuzian, Naser-Civil law: The general rules of the contracts-Tehran: With the collaboration of Bahman Borna, 1997. Page 270275

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(check, draft, money order) are determined in trading


law and if they are not observed, the provided sheet is
considered an ordinary civil document and it doesnt
enjoy some benefits as partnership 39 , penal
responsibilities, etc. Against such formalities creating
the right, some formalities or other limitations are
formulated during the legal activities that doing them
has no effect in legal event and is very effective from
proving view and not observing them causes many
problems during the need to its proving in the court
and other places and if its proving is done by another
method, the legal event has not proving problem. In
Iran law, the formalities of making will (self-note,
formal, series) based on article 291 of Hasbi affair
law (ratified on 1940) and the formalities are
considered. The limitations of accepting various
proving methods for some of the legal events (like
the limitations in the articles of 1927 of civil law of
Iran and it was removed 1983) and it is considered a
kind of formalities in rights proving and in case of
the lack of observing them, the problem in proving a
legal event is created. If the proving freedom
principle is raised in trading law, this principle
removes the proving formalities not the formalities of
creating the right. In legal thoughts of France law
without separating these two formalities and as the
exceptions, some items that are not mentioned
including proving freedom principle in trading
law 40 .As these cases are not the exceptions of this
principle and it seems that the existing legal thoughts
of France law didnt consider this separation, these
formalities are dedicated to creating rights and they
are not dedicated to proving and in case of not
observing from its proving, the legal event is
incomplete. In some of the legal thoughts of France,
the distinction between the formalities in proving was
referred and it was stated that the distinction between
these two formalities for Supreme Court is very
important.41
It can be said that the law maker with various reasons
can the law maker with various reasons can give
importance observing the limitations and formalities
that its effect is not consider in proving but it is
considered in sobut stage and one of its reasons is the
order that is created by proving method but when a l
imitation has inherent influence in making a legal
event, if it is not observed, the event is incomplete
from sobut views and even the beneficiaries confess
to that event, the problem is not solved and the legal
event is not considered as complete; If Moqarare
used a writing or document as formalities in proving

right. This question is raised that if its object is


trading legal event and the rules of these formalities
are necessary, freedom principle of proving causes
that for its proving the legal event with trading object
has another reason except the written document? In
France law this case is serious as a problem in legal
procedure and the Supreme Court defined some
solutions for unity in legal procedure. For example,
in peace contract 42 , article 2044 of civil law France,
the formalities contract is necessary43. If the object of
this peace is commercial, freedom principle of
proving is caused that there is no need to such sale
contract? In response, we shouldnt neglect the
separation between the formalities in rights and
formalities in law proving and Supreme Court of
France is given verdict that the need to such
formalities is when the contract object is completely
civil and it can be concluded that if the peace object
is commercial, by certification and Emarat when they
have the conditions, it can be proved.44 Indeed, the
verdict of France Supreme Court is analyzed when it
requires the writing and it is used to solve the
probable problems being used in object proving and
the lack of writing in problem proving and as
freedom principle of proving is proved in commercial
subjects was free, thus, the freedom principle of
proving is important in the objects between two legal
maqarere and the public and private relation.
Based on the explanations, the legal thought (in
France law) due to the lack of vivid separation,
between two formalities, when providing the writing
(l'crit) are of the formalities in creating law and they
are the exception principles and it is providing the
writing for company contract (commercial, based on
article 1835) 45 . Sale or mortgage of commercial
object (article L 141-5 France commerce law), rent of
commercial and industrial (Article L 2-144 of France
commerce law), transportation contract (Article L
225-38 of France commerce law) and the contracts of
marine navigation (ratified in December 31, 1966, the
law ratified on the third of Jan 1967).46
Again, to find the solution and the response on which
we can find the real exceptions of this principle in
commerce law, we can understand that the necessity
of writing in it is removed under the freedom
principle of proving in commerce law or it is
remained as an exception of this principle in trading
law. We can act as if the necessity of the writing to
the legal act in civil rules is existing as formalities in
proving rights and it is given to the commercial
42
la transaction
43
Article 2044: "La transaction est un contrat par lequel les parties terminent une contestation ne, ou prviennent une contestation
natre. Ce contrat doit tre rdig par crit."

39

For more information see Kaviani, Kurush 1339, Trading documents law-Tehran: Mizan, First edition 2004. Page 81 Darvish
Hoveida, Yusef-Trading documents law-Tehran: Mizan edition 2012. Pages 28-47.
40
" titre exceptionnel, certains contrats doivent tre passs par crit: contrat de socit (art. 1835 C. civ.); vent et nantissement du
fonds de commerce (art. L. 141-5 C. civ.); location- grance des fonds de commerce ou des fonds artisanaux (obligation rsultant,
indirectement, de l'art. L. 144-7 C. com.). ": - Annie Chamoulaud-Trapiers- Droit des affaires-Editions Bral, 2007, p.31.
41
"Le lgislateur peut apporter des exceptions ce principe en exigeant un crit pour des oprations juridiques importantes (ex.: vent
de fond de commerce) toute la difficult tant parfois de distinguer si l'crit est requis ad validitatem ou ad probationem Pour la Cour
de Cassation,"; Jos Lebre de Freitas- Beweisrecht in der Europischen Kluwer Law international, 2004, page 155.

44
Encyclopdie juridique, R.D.COM., la preuve, n61
45
45-" Article 1835:Les statuts doivent tre tablis par crit. Ils dterminent, outre les apports de chaque associ, la forme, l'objet,
l'appellation, le sige social, le capital social, la dure de la socit et les modalits de son fonctionnement." Some cases as this
article show that these formalities create law from the view of the law maker.
46
Annie Chamoulaud-Trapiers- Droit des affaires-Editions Bral, 2007, p. 31. Ou en site: http://www.alsaeco.com/notesjuridiques/preuve-des-contrats-commerciaux,465559,fr.html.

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affairs, it is included in freedom principle and if it is


of the formalities in the right used in civil law or the
formalities referred in commercial rules, it can be
said that this condition even if it is of formalities in
rights proving, as it was said in commercial rules, it
can be considered as exceptional real meaning on
proving freedom principle in trading law.
Regarding the formalities in trading law for such
events, there are some doubts regarding the problem
of freedom principle and other legal requirements.
For example, regarding proving the purchase invoice
of the object of commerce or the products or the
instruments being used to launch a commercial job,
this question is raised that if this requirement causes
that if a merchant didnt provide any invoice in these
cases, he can not prove the purchase or the prices? To
respond this question, it can be said that in commerce
law, the formalities are stated with various
motivations and these formalities are divided into
three groups in terms of the results:
1. The formalities being formulated by the law
maker in order that the legal event is considered
as commerce act and if they are not observed, it
is not considered commercial. Like the
requirements in article 223 of Iran commercial
law for money order, the result is not observing
most of them and the document is not considered
a money order and in case of money order can
not be commercial.
2. The formalities that observing them cause that a
person uses a series of commercial priorities and
not observing them violate the legal privileges.47

The formalities that observing them are the


requirements of economical, administrative
affairs of a merchant. For example, it is possible
that tax office provided some regulations for
permitting the law maker to complete the tax
statements, and this is the administrative
necessity and the guarantee of not observing
these affairs is the cash fine, deprivation of some
economical or administrative privileges and the
responsibility of losing a legal probability or
non-commerciality of the act is not legal.

47

For example observing Moqarare of article 315 current trading law of Iran requires the formalities of obtaining the certificate of
not paying before finishing the periods and if it is not done, a person loses the privilege of referring to back writing as the results of
partnership responsibility and this sheet will remain as check.

806