Utilizing the capacities of the notary in managing the pre-sale process in the light of the theory of "contracting project management" with emphasis on Agency Problem

Document Type : Scientific research

Authors

Nasrin Tabatabai Hesari

Soroush Safizade

Department of Private Law,University of Tehran(Farabi college)

https://doi.org/10.22067/economlaw.2023.75613.1155

Abstract

The expansion of urbanization,raised raised the issue of housing and construction development as a necessity.In this regard, the legislator, by creating a contract called pre-sale of buildings, in addition to facilitating access to affordable housing, helped finance construction projects. However, the pre-sale contract is like a sapling that simply plants it without taking measures for its care and management, dries it up. the lack of a management-monitoring model in the building pre-sale process has been a serious issue in the pre seller-pre buyer relationship which has created many problems. Therefore, the question is how to achieve a legal mechanism for efficient management of the pre-sale process.
To answer this question, this article, based on the method of desk research and referring to documents in collecting information, along with descriptive-analytical researching method, first of all, considered the issue of Payment supervision and arbitration in disputes as the most challenging issues in buyer-seller relations. And in the framework of the study of the role of the notary in the pre-sale process in foreign law and the opinions of experts in the field of the capacities of the notary system, has presented a model to answer this question based on the rationale of the agency issue in economics and using the theory of contracting project management centered on the role of the notary.

Keywords

Pre-sale contract

Law of Construction

Notary

Contracting management project

Payment supervision

Arbitration

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©2023 The author(s). This is an open access article distributed under Creative Commons Attribution 4.0 International License (CC BY 4.0)

References

• Abasi Dakani, Kh.(2008), Deeds Registration Law,Tehran:Mizan[in Persian]
• Allensworth,WRoss J.,A., Overcash, A. ,andPatterson,(2009), Construction Law, Chicago:American Bar Association.
• Azimi Zadeh, M.(2016), The Comparison Between Enforcement of Civil Verdicts and
• Enforcement of Enforceable Documents, Faculty of Law & Political Science, Allameh tabatabaei University[in Persian]
• Bailey,J.(2011) ,Construction Law,Oxon:Routledge.
• Bastani Namaghi, R., Piri, J., Rahmani, A.S., Mohammadi, M.R.(2018), Analysis and pathology of building pre-sale law, Tehran: Press and Publication Center of the Judiciary.[in Persian]
• Davoudabadi, M.(2017), "Pathology of pre-sale law with a look at French law", Journal of Eda’lat Private Law,4(8),29-56[in Persian]
• Darvishi, B. & Mohseni, V.(2011), “A look at how to select and qualify notaries ‌ in Iranian and French legal systems”, Azad Law Researches Quarterly, 4(14),76-116. [in Persian]
• Eftekhar Jahromi, G., abdolkarimi, H. (2018). “Studying of theories issued in nature of pre_sale contract with the focus on Building Pre_sale Act (Enacted in 2011)”, Journal of Law Research, 21(81), 11-33. [in Persian]
• Farhadi, H., Shams, A. (2022), “Judiciary through the quasi-judicial authorities of the Judge of the Dispute Resolution Council”, Culmination of Law, 7(4), 54-83[in Persian]
• Foroutani Rad, H.(2013),A Study of the Position of Notaries from the Perspective of Public Law,A thesis, Faculty of Law & Political Science, Islamic Azad University(Central Tehran Branch). [in Persian]
• Ghassemi, M.(2009), Formalism in Civil Law, Tehran:Mizan[in Persian]
• Glock, S. (2004), Real property Law project- France, EUI-Real Property Law, European University Institute (EUI) Florence/European Private Law Forum,Deutsches Notarinstitut (DNotI) Würzburg.
• Godwin, William(2015), International Construction Contracts: A Handbook, translated in Persian by M.S. Jaberi,Tehran:Tisa[in Persian]
• Godwin, W. (2020) , The 2017 FIDIC Contracts, Hoboken:Wiley.
• Goldfayl, G.(2004), Construction contract administration,Sydney: University of New South Wales Press Ltd.
• Islamic Parliament Research Center (IPRC)(2008), Expert opinion on the building pre-sale bill", available at: https://rc.majlis.ir/en/report/show/731035, ,[in Persian]
• Jaberi, M.S(2017),Construction Law,Tehran:Mizan.[in Persian]
• Jensen, M. and Meckling,W.(1976), ”Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure”, Journal of Financial Economics,3(4),305-360 .
• Katouzian, N.(2017),Iranian Civil Law. Specific Contracts, Vol 1,Tehran: Enteshar Co. [in Persian]
• Keisandokht, Gilda(2012), “The Role of the Notary in Development of National Legal Order”, Quarterly Journal of Private Law Research,1(2), 137-165[in Persian]
• Khodarahmi, N.(2012), apartment pre-sale Contract in Iranian law,M.A tehsis,Faculty of Law & Political Science,Allameh Tabatabai University[in Persian]
• Malavet, P.(1996), “Counsel for the Situation: The Latin Notary, A Historical and Comparative Model”, Hastings Int'l & Compo L. Rev.,19(3), 389-488.
• Mirhoseini, S.H.(2012) Description of the decisions of the Supreme Council of Registration, Tehran:Mizan[in Persian]
• Mousavi, S. and , Zeheiri, A. (2016),”Review pre-sales contracts and building partnership law in Iran”, International Journal of Humanities and Cultural Studies, Special Issue (April 2016),2659-2663.
• Najafi Abrand Abadi,A.,Hashem beige,H.,(1998), Encyclopedia of Criminology,Tehran:SBU Publisher[in Persian]
• Nazemi,S.(2009),“ Installment receipt and the dignity of its issuance”, Kanoon Journal,N. 96. [in Persian]
• Ploeger,H., van Velten,A. and Zevenbergen,J.(2005), Real Property Law and Procedure in the European Union( Report for the Netherlands), European University Institute (EUI) Florence/European Private Law Forum,Deutsches Notarinstitut (DNotI) Würzburg.
• Safai,S. (1998). A few words about the innovations and shortcomings of international commercial arbitration act, Law & Political science Journal,N. 40, 5-39[in Persian]
• Sarvi, M.B.(2011),”Analysis of the position of arbitration in the law of pre-sale of buildings”, Qezavat Journal, N. 70, 6-8[in Persian]
• Schmid, H.,Hertel,C. and Wicke,H.(2005), Real Property Law and Procedure in the European Union, EUI-Real Property Law, European University Institute (EUI) Florence/European Private Law Forum,Deutsches Notarinstitut (DNotI) Würzburg.
• Seyedi Arani, S. (2019). “IRAN'S NOTARY OFFICES AND THE NEED TO REVIEW THEIR IMPLEMENTATION METHOD”, Law Quarterly, 49(2),311-328. [in Persian]
• Shams, S.(2019), Ways of Execution of Civil Judgments, Tehran:Derak[in Persian]
• Shiravi,A.(2021),International Commercial Arbitration,Tehran:Samt[in Persian]
• Sokouti, N., Hoseinzadeh, J. (2017). “Nature, Features and Jurisdiction of Arbitration in Building Pre-sale Act”, Private Law, 14(2), 283-307[in Persian]
• Tabatabai Hesari, N.(2014). Basics and the effects of the land registry system, Tehran: Enteshar Co.[in Persian]
• Tabatabai Hesari, N.(2017), The role and function of the Deeds and Real Estate Registry Organization and its Authorities, Tehran: Press and Publication Center of the Judiciary. [in Persian]
• Toosi, A.(2014), Economic Analysis of Corporate Law, Tehran: Shahre Danesh Press. [in Persian]
• Tabatabai, S.(2017) ,”The Nature, Terms and Legal Effects of Presale or Pre-Construction Contracts of Building (Apartment)”, Journal of Politics and Law, 10(1): 228-233.
• 25th International Congress of Notaries.”Theme I:The Notarial act as an instrument of developement in society”, available online: <https://www.uinl.org/documents/20181/73053/temai-conclusiones_en/f4130b2e-10c4-4d88-af65-eaaf7f39cbb5>, Accessed at 2021/2/2, (2007).
• Valavion,R.(2002) “Sale of unbuilt apartments”, Law and Politics Research, No. 4,31-44[in Persian]
• Zare,M., Salimi,M. (2015). “Introduction to Arbitration in International Commercial Litigation”, Journal of Law and Politics, 11(4), 47-64. [in Persian]
• Zarnegar, F.(2006), Pre-sale contract of the building, Faculty of Law, Shahid Beheshti University. [in Persian]