Document Type : Research Paper
Author
Assistant Professor, Department of Law, Faculty of Law and Social Sciences, Payame Noor University, Tehran, Iran,
Abstract
Abstract
The marketer plays a vital role in transactions. By facilitating the supply, on the one hand, the marketer provides a valuable service to the demander. On the other hand, he facilitates the possibility of supplying goods or services to the producer. The development of commercial affairs and commercial exchanges has caused the specialization of marketing as a profession, and there is a need for specialized knowledge and experience in this job. A Lacuna in the Law is evident, so legislators and legal writers have neglected it. The legal gap undoubtedly is the cause of the many legal problems for this vast group of commercial activists and their parties. This article uses a descriptive-analytical method, compiled by referring to the relevant laws, regulations, and works, and analyzes them based on legal principles.
Nowadays, it is necessary for the marketer and marketing to acquire a special legal status independently and like other existing institutions so that the legal status of this critical part of the commercial and economic activities of the society is clarified.
Currently, a marketer has no place in Iran's legal literature; therefore, to determine the importance and legal status of marketing activity, its position should be analyzed in light of its matching with similar legal institutions.
If the contract involves making a transaction for the account of the principal and the parties explicitly call the contract a power of attorney based on their intention, the contract has the nature of power of attorney. In this way, he can be called a marketer-lawyer; of course, it can only be considered a power of attorney when it is incompatible with any commercial representation (royalty, brokerage, agency, or other cases). A clear example of this situation is when marketing is done free of charge.
If the marketer's activity is in such a way that the creativity and initiative in the work are solely with him, and he is not under the supervision and compliance of the employer in doing marketing, then the worker's title does not apply to him.
Marketing has the adaptability to with commission if: first, the marketer deals. Secondly, the marketer should conduct the transaction in his name and on the principal's account. In cases where the marketer only mediates the transaction without dealing with the other party himself, the nature of his action is an example of brokering. According to brokerage regulations and what happens in practice, most examples of marketing without independent legal regulations are subject to the nature of brokerage; a marketer often does not initiate a transaction between the principal party and the other party but merely acts as an intermediary between them. If the nature of the marketer's action is a brokerage, the following duties are deduced from the relevant regulations: a. conducting mediation in transactions subject to the marketing contract: b. notification by the marketer. Marketing may be realized as a factor, and the condition for recognizing a factor, such as royalties and brokerage, is to perform work for wages.
Marketers and marketing professionals are common and inevitable cases in the market and commercial and economic activities today. Despite this, they do not have a special place in the relevant laws. Since the mission of the law is to regulate the legal relations of individuals in society, the laws must be regulated and approved in parallel with social phenomena to avoid ambiguous legal consequences and differences in determining the rights and duties of related parties. The need for the dynamics of rights to respond to legal phenomena caused by social changes requires that marketing, like other commercial businesses, has its nature and regulations. What is the quantitative and qualitative abundance of marketing in business and economic relations? It is even more than some similar businesses.
In the current legal vacuum and the lack of a specific nature for the marketer and marketing in the relevant laws, according to what is prevailing now, the marketer mediates the transaction between the seller and the buyer through activity and advertising. Therefore, in most cases, marketing coincides with the nature of brokering. However, the criteria of the parties' contract in each case represent its legal nature, and inevitably, to determine the rights and duties of the parties and the effects of the contract related to marketing, its nature must first be considered concerning other similar cases such as royalties, brokers, agents, attorneys, and leases. If the person is identified, then based on that, he determines the contractual works. In any assumption, the titles of marketer-right-holder, marketer-broker, marketer-agent, and marketer-lawyer will be the pioneers of the nature and legal position and accordingly determine the rights and duties of marketer and agent.
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