فصلنامه پژوهش های فقه و حقوق اسلامی
سال ششم شماره 3 (پیاپی 19، بهار 1389)

After Islamic revolution victory, punishments divide into four parts; limits, retribution, blood-money and Tazirat. But then other part is added to these four parts as deterrent punishments. The last part of this collection is not known in our Jurisprudence and law and its nature is full of ambiguity.There are some theories related to deterrent punishments as follows:1-It is one part of ordering to good deeds and preventing bad deeds.2-It is not independent.3-It is one part of educational measures.4-It means Tazir.In this Article, the author explains the above mentioned theories thoroughly and shows that jurists know governmental Tazirat legally.

Interpretation of contract means to take screen of every kind of ambiguity caused by silence, implications and conflicts in terms and discovery of purpose of contracting parties. Verbal principles are one of the contract interpretation principles and essentials that can be access to words of common emergence by them. In assumption of ambiguity of contract, that, usage of real or metaphorical meaning is not clear and there isnt contextual evidence about usage of metaphorical meaning which must carry real meaning by help of the truth principle. In assumption of silence, we must pay attention to whole contract.

One of the most important issues in the field of civil responsibility is the issue of gathering of causes in occurrence of damage, because many of the harmful events that occur are the effect of some factors or causes and determining the responsible cause among theses causes is a difficult job. This question has always been discussed among the jurisprudences that in case of causes gathering in occurrence of damage which cause is responsible and what is the basis of determining the responsible among the causes. The main aim of this research is to find a complete and comprehensive basis for determining “the responsible” among the causes involved in damage. In this research, first of all, the views of jurists and jurisprudences in this context have been criticized and examined and then the efforts have been made to present a complete and comprehensive theory that could be applicable to all examples and cases of the issue. As a result of accomplished examinations it becomes clear that in this context there are different views such as the theory of premier cause in efficacy, the theory of latter cause in occurrence, the theory of premier in creation, the theory of stronger cause in efficacy and the theory of causes equality. It becomes also clear that none of mentioned theories can solely justify the guarantee in all cases of causes gathering, rather with respect to the fact that the responsibility basis in wastage and causing is the traditional reliance of wastage to the act of person, so in case of causes gathering, the responsibility basis is also the traditional reliance of wastage and in case the wastage traditionally relied to both of them, both are the guarantor and in case the wastage relied to one of them, only the same cause will be responsible. This theory is introduced under the title of “theory of traditional reliance of wastage”.

Although, some lawyers have opinion that the theory emerges from the maxim of " Re bus sic stanti bus", which means everything will be as was the conclusion of the Contract, but must accept that this theory is existed by economic crisis of the last century. On the basis of the theory, if in a long term Contract, in the effect of Change of circumstance, which were unforeseeable for parties, the Coasts of the contract becomes so expensive that lose the balance of the Contract, for allocating of heavy unfair responsibility on one of the parties, this theory comes into.The theory is bring into legal systems of many Courtiers and some conventions as Vienna, UNCITRAL, UNIDOIT, I.C.C and principals of European Contracts. Iran’s law system has not any legislation about applying this theory and courts object to invoke to it on basis of stability of contract and Islamic law; in sprite of; some lawyers have been tried to find an equivalent for it; but expressly this system don’t try to create a principle for contract which is effected in change of circumstances. In this article; the author tries to introduce the scope of the theory in Iran and Islamic law and in the end some proposals are demonstrated.

Robbery often relates to the persons who are alive. But Islamic Religion nature forces us to study this crime for dead persons. Most jurists do not indicate to the robbery which related to dead persons, but former jurists studied it. According to their studies, robbing shroud from grave will cause to cut the robber’s hand. But if the robber robs dead person’s property from grave, his or her hand would not be cut. Extracting dead person’s body from grave is not robbery but insolence.Maybe in western societies and developed countries, this subject be more important. Because their people buy and sell dead person’s body to test on it and eventually it may be robbed.In this article, the authors explain the robberies which relate to dead persons to find out an answer for the relevant ambiguities.

According to the jurisprudential rule of “Waste during Option Period is the Liability of the Party without Option”, if the object of sale is wasted during the period in which a party is entitled to cancel the contract, the other party who is deprived of cancellation option will compensate for it. Iranian Legislator has adopted this rule and has included this rule in article 453 of Civil Code. In order to interpret this legal article, jurisprudential premises should be taken into account. This rule is contrary to ownership requirement, as upon conclusion of mutual contract, the seller becomes the owner of the price and the customer becomes the owner of the sold object and waste of property should be vested in its owner. Thus, when interpreting this rule, certainty will be a sufficiency prerequisite. In order not to have waste of property vested in non-owners, jurisprudents justify that one moment before waste, contract is cancelled and the property’s title is returned to the seller who will be liable for its waste, like the rule of Waste of the Object of Sale before its Receipt. Some others consider this rule as a sequel to the rule of Exchange Guarantee before Receipt. This rule doesn’t apply to all options except for option of meeting place, option of animals and option of conditions, collectively known as time options. If in a sales contract, a party has option of cancellation and the other party lacks such an option and the sold property is wasted, the liability is vested in the party without such an option. It is noteworthy that on the face of it, the rule includes waste of price; but, with regard to the narrations, it doesn’t include waste of price. To be added, this rule doesn’t apply to general contracts which don’t include definite objects of sale.

It cant be denied that punishment and law are vitally important in people's life. It is clear that all religions invited people to do good deeds and not to do misdeeds. To gain more money, There's a struggle among people in every society. It's here that there's a need to follow rules and regulations. In this study, we want to consider the comparative study of corporal punishments in Quran and the old Testament.