پژوهشنامه متین
پیاپی 75 (تابستان 1396)

The marriage contract is the most important contract that an individual concludes in his/her life. Hence, compared to other contracts, it has its specific characteristics. Guile and fraud is undesirable and uninvited in every contract, but it is more objectionable in such a sacred contract. Despite this fact, such a fraud has not drawn the due attention of the legislator. Lawyers argue that Article1128 of the Civil Code that covers the attributes of the two sides covers the issue of fraudulence as well. The focus of this research is the legal lacuna about fraudulence in marriage. A review of the legal and jurisprudential sources indicates that Article 1128 does not fully cover all cases of fraudulence in marriage. In fact, fraudulence does not always refer to the absence of a desirable attribute; moreover, the right to rescind a contract alone would not lead to the vindication of the rights of the deceived person. In addition, the abrogation of the marriage contract not only does not solve any problem but adds to the existing problems.

The main objective of the present research is to study the Right to Rescind the Contract in Case of Loss Resulting from Deceit and its relation with the Principle of No Harm. In the first place the right to rescind a contract in case of loss resulting from deceit and conditions for its realizations are defined and then the viewpoints of the jurisprudents about the document of this rule are discussed. The jurisprudents have employed different sources for this rule. These documents have been critically studied and finally it is concluded that rationality and stipulation are accepted as a document or a basis for this rule. Also the relationship between the Right to Rescind the Contract in Case of Loss Resulting from Deceit and the Principle of No Harm have been discussed, arguing that the Principle of No Harm cannot be a basis or a source for this option. The viewpoints of jurisprudents, particularly those of Imam Khomeini, have been taken into consideration in this research.

Imam Khomeini considered the Quran as a source that enjoys such a comprehensiveness which can meet all the material and spiritual needs of human beings in their attempt to attain a happy life in all times and spaces. On the other hand, in viewpoint of Imam Khomein, the Quran is not merely a book for individual knowledge, upbringing and ethic, but it contains social and political doctrines for management of the society based on independence, freedom, and rejection of oppression and arrogance. Hence, in his viewpoint, Islamic uprisings in the course of history, including the Ashura Uprising, aimed to revive the role of the Quran. The Iranian nation, following the Ashura Uprising, launched their Islamic movement for the rule of the Quran and establishment of a Quranic government and by holding fast to the Quran and Quranic secret of martyrdom have attained victory over the illegitimate government that can be an eternal example for other oppressed Muslim nations. Hence, the main objective of this paper is revisiting the fundamental principles of the Quranology of Imam Khomeini and explanation of the relationship between the Quran and the Islamic Revolution through Imam Khomeini’s understanding of the Quran.

After the revision of the Constitution of the Islamic Republic of Iran, the role of consultation to the leader was delegated to the State Expediency Council. Among the important issues in this regard is the responsibility of the Leader towards the consultative viewpoints and decisions of the State Expediency Council. It is not clear whether the Leader is obliged to accept the viewpoints of the Council if his viewpoints are in contradiction with those of the Council. There is no reference to this issue in the Constitution either. The present article is an attempt to study the viewpoints of the jurisprudents as well as those of Imam Khomeini on this issue through a critical-analytical approach. In Imam Khomeini’s viewpoints consultation with the experts aims to find out the truths and discover different aspects of a matter and hence abidance by the viewpoints of the consultants is necessary only when the person who receives the consultation is not enough expert in that field; but, if he enjoys the necessary expertise, he can decide on the issue even if his viewpoint is contrary to that of the majority.

There is a consensus among all jurisprudents that the leased property is a trust accepted by the lessee who retains no obligation towards any partial or total damage to the property, unless the lessee defaults on his obligations stipulated in the lease. There is a consensus among all jurisprudents about this issue as the Author of Jawahir has mentioned. The question that arises is: Is the lessee responsible for warrantying the property if the lease contains the term of warranty? There is no consensus on this issue among jurisprudents. The predominant viewpoint of the jurisprudents is that incorporating the term of warranty into a lease is not correct, but some of them such as Seyed Morteza, Mohaqeq Ardabili, Author of Riyadh, as well as Author of Orwah argue that incorporating the term of warranty into a lease is correct.
Some of the jurisprudents compare lease with lending and argue that incorporating the term of warranty by the lessor into the lease is correct. They maintain that according to the principle of “The believers abide by their commitments,” the incorporation of warranty into a lease is correct, because the term of warranty is correct in lending. Other jurisprudents, however, argue that analogy is not allowed in our religion and hence warranty in lending is contrary to the said principle and is based on another tradition (hadith).
In this regard, Imam’s viewpoint, like that of the Author of Orwah, is against the predominant viewpoint. He argues that the term of warranty in a lease is correct. On the other hand, Mohaqeq Khoei and the Author of Al-Mustamsik, similar the predominant view, argue that the term of warranty in a lease is not correct.

The main objective of this paper is to collect the viewpoints of jurisprudents with the centrality of that of Imam Khomeini about what impairs and harms the correctness of ablution and nullifies it based on the primary and secondary commandments. The necessary data have been collected from books, journals and Internet sources. After explaining the viewpoints of some outstanding jurisprudents, Imam Khomeini’s viewpoints have been described and analyzed and compared with those of some jurisprudents such as the author of Jawahir. The findings of the research indicate that any error in the particulars and requirements of ablution would nullify the ablution, but in some cases the Lawgiver has ruled that it would not nullify the ablution, such as the rule of washing the entire body in contrast to exempting some parts for which washing is harmful and are washed from over a cover that is called jabirehi; or the rule of release or the moment of release from completing the ablution and doubt about its particulars which does not nullify the ablution. The study of these impairments which are called impairments (khelal) in jurisprudence and the collection of the viewpoints of jurisprudents in this regard facilitates consultation about this jurisprudential chapter (purity-ablution).

Although the Principle of Sovereignty (People have domination over their properties) is very well-known, some researchers, including Imam Khomeini, have cast doubt on it. They argue that this principle is not absolute and cannot be applied to the cases whose possession or permission for their possession is doubtful. Four aspects of the said principle have been studied in this article and through offering a fifth viewpoint attempts have been made to prove that the Lawgiver through stipulating the Principle of Sovereignty of owner over his property, has approved the qualitative and quantitative possession of the owner. However, this sovereignty is suspended and is subject to the cases that the Lawgiver, contrary to the Principle of Sovereignty of the owner, has not applied His sovereignty. One of the valuable results of this viewpoint in law and jurisprudence of transactions is that this principle plays a crucial role in the newly-emerged contracts for whose nullification there is no specific reason.