فصلنامه پژوهش های فقه و حقوق اسلامی
سال دهم شماره 3 (پیاپی 36، تابستان 1393)

Article 265 of the civil code has been appointed: "whoever gives property to another, the principle is that he is not giving it free. In interpreting this provision, there is a difference of opinions among the lawyers. Some of them believe that this provision represents a credit for donor of the property and others believed in the lack of credit for donor of the property. In this regard, the proof of eligibility to receive is the responsible of the receiver of the property. In Imamiyah jurisprudence, there are some debates between the priority of word of the donor or receiver. In this study, an effort is done to mention the various legal and religious ideas and review them. We shall see that giving the property to another, is an evidence of being in debt.

One discussion that is related to testimony is women' testimony. Based on the viewpoints of the majority of jurists in public rights with the exception of adultery, basically, a woman's testimony alone, not worth causing to prove an offense. But non-financial rights of people would not be proved by the testimony of women, both individually or concretely. In financial rights of people, testimony of two women together can prove the case. Some cases that are not visible by the men, only proved by women's testimony. In some case, jurists have variance including women's testimony in the murder. In this research we intend to analyze and discuss the status of women's testimony in the murder.

Women as judges has been one of the most challenging subjects in Shiite Jurisprudence (Fiqh), Law, Quranic Sciences, Hadith, and other fields. Some researchers in these fields have studied the women capacity for judgment and have tried to criticize the conventional approach in Shiite Jurisprudence that denies women's capacity to judge. This paper seeks to address the subject from a new perspective, i.e. the philosophy of Fiqh, and highlights the importance of Fiqh philosophy in Shiite jurisprudence, suggesting that this gap is created due to ignoring reasoning in Shiite jurisprudence. Finally, it is concluded that the issuance of such judicial decrees (Fatva) in Shiite Jurisprudence is rooted in the inefficacy of anti-rational Jurisprudence (Ijtihad) which can discredit Sharia as well.

Monarchy is one of the absolute rules of Islamic jurisprudence rules which represent dominion over the property from owner. But in some cases owners to despair of reaching and his assess the rub or because of some other reasons refuse from it and don’t give ownership anyone else. Now this is the question: dose ownership remove from owner by refusing of his ownership and the second question is: can anyone else dominate on it? Ownership can’t be removed just by refusing of owners from ownership. But if it is dispensed and a person other than the owner take it and prevent the wasting of it so he will be owner. In this situation, the owner lost his owner ship. So, the property is placed in a sentence permissible property and others are free to set it to their ownership and everyone who saves it can be the owner.

Given the importance of the reason of wisdom (Dalile Aghl) in inferring legal rulings, especially in new issue, examining the reason of wisdom would help a better use of the reason of wisdom. Examining the deductive manner of Mohaghegh Helli as an influential jurist in development of jurisprudence is befitting and praiseworthy in proving this issue. For this purpose, his discursive and theological (Usuli) legal texts have been examined on the basis of content analysis method and his legal judgments have been examined one by one. The results of the research indicate that Mohaghegh Helli has used the reason of wisdom for proving the necessity of the book (Quran) and tradition obedience.

There is an important issue in legal and jurisprudence Does possession of other's property permitted by the owner, with no voluntary waste, also brings about civil liability? Or does owner's permission remove liability? From the purport of some jurist's statements, it is implied that possession of other's property permitted by the owner does not bring about civil liability. Some other jurists have also stipulated that permitted possession enjoys a fiduciary nature. On the other hand, from the statements of some jurists in some cases, it is inferred that possession of permitted property brings about civil liability. In permitted possession, although the possessor possesses a property with owner's permission, he will be liable for it. Jurist's statements in terms of the fact that whether or not owner's permission negates civil liability is not thus much clear and self-descriptive. They differ in different situations and implications. In this research, types of (absolute, trust, liability) permission were dealt with and this result was obtained that absolute permission does not negate liability. Therefore, those who believe that absolute permission brings about trust possession or removes possessor's civil liability are not right. Yet, if possession is free of charge, with no compensation, the permission will not be liable. On the other hand, is has been reviewed that if permission is granted in trust, this type of permission will cause possessor's removal of civil liability and trust possession, whether this permission is granted in the form of determinate or indeterminate contracts.

In civil liability, although today is talking about the collective responsibilities, But as a rule, the rule of Vezr (personal responsibility), prevents of exposure the liability to other. According to some jurists, sometimes the obligations arising from the contract will extend to surrogate. Whereas with studying jurisprudential texts, this doubt is posed whether all obligations are transferred the promisor due to the surrogate obligation? And civil liability can also be extended to the surrogate or confined in the realm of rule of Vezr, that through a comparative study, it will be analyzed.