A Jurisprudential Approach To The Nature Of The Medical Contract
Subject Areas : Medical lawKeyvan Rezayi 1 , Seyyed Mohammad Asadi nejad 2
1 - Master of Private Law, Department of Law, Faculty of Humanities, Rasht Branch, Islamic Azad University, Rasht, Iran.
2 - lplAssociate Prof., department of Law, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran.
Keywords: Medical contract, legal nature of the contract, legal cause of the contract, indirect and secondary effect of the contract, proxy.,
Abstract :
The medical contract expresses the mutual cooperation of the patient's will with the doctor or treatment group. And due to the integration of the two fields of law and medicine, it is of special importance. Of course, this agreement is not the only reason for creating a legal relationship. In medical emergencies, due to the lack of a healthy will on the part of the patient, it may not be possible to realize an effective agreement. In this case, the permission of the law replaces the permission of the patient, and exceptionally, the law creates this relationship. It is very likely that there will be a difference between the doctor and the patient, Therefore, knowing the "legal nature" of the contract and using the general and specific rules of the chosen contract, Not only does it have intrinsic value in theoretical discussions, but it also makes it scientifically come from the stage of theorizing into the field of practice. And finally, this method is a way to solve the disputes of the parties. In the review and analysis of a contract, it is particularly important to know the "legal nature" in comparison with the secondary rights and obligations arising from that contract. In the analysis of this contract, there are two theories of "definite contract" and "indefinite contract". It seems that in this contract, by which the doctor finds the very dangerous position of the authority to seize the body and life of the patient, The obligations of the doctor and the patient towards each other are an "indirect and secondary" effect and precede the existence of another legal entity called "proxy". And knowing this concept due to the necessity, including: compliance with jurisprudential and legal principles and principles, preserving the patient's dignity, as well as compliance with the ethical principles of medicine, is the beauty of this contract.
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