فصلنامه پژوهش های فقه و حقوق اسلامی
سال یازدهم شماره 2 (پیاپی 39، بهار 1394)

Jurists believe that Arsh is contrary to the rule and they deny its entrance in other options. Civil law، only in the discussion of Khiyar Eyb، has spoken of the right to receive Arsh and has not prescribed it in other options. Most of the lawyers has the same viewpoints and tried hardly in justification of civil law in this regard. It seems that in Khiyar Eyb، Arsh is receivable when deficiency or lack of health causes a change in value and price of traded goods without loss of the whole value of those goods. A point that can be regarded in jurists’ viewpoints and civil law relates to the nature of Arsh which is the performance guarantee of the contract itself. In this regard، in any reciprocal contract as a sale، the parties undertake an implicit manner to establish equality and balance between the value of the goods and its price and implementation in contract and if each party breaks this commitment، the obligation must force him to implement this commitment. Accordingly، it seems that Arsh is not only contrary to any rule but only it can be exigible in other options in which lack of effective factor causes violation of commitment in making relative balance in value of the goods.

Doctrine of Islamic punishment aims to create individual and social security for the society. Also, safety of the society is depended on stability of the foundation of family. Stoning is a fixed and necessary decree from the perspective of the majority of Islamic sects, but some groups deny it based on their different viewpoints. The judicial approach is one of the most important approaches, because in addition to consensus, numerous traditions will corroborate this decree. These traditions are divided in terms of meaning in two positions: Evidence and Proof. Therefore, although some of the opponents accept these traditions in the position of Evidence, but others reject it in terms of Proof or implementation of stoning in the era of The Prophet and Infallible Imams, and so they try to show them invalid by criticizing the text and document of these traditions too. This study, by explanatory and analytical method, checks the validity of the traditions of stoning decree implementation in the four books of Shiite. The findings indicate correctness of these traditions and implementation of stoning in the era of The Prophet (pbuh) and after it.

Since adjudication is one of the most essential and important subjects in the religious jurisprudence and law, the qualification of the judge is very important and so Islam underlines the competence and jurisdiction of the judges. This issue was negotiated from the time of Sheikh Tousi but in the last couple of century some open handed jurists that practically have tried to end the hostility have studied different sides of this subject more considerably. One of the conditions for the qualification of judge especially in religious jurisprudence is Ijtihad (divine law on matters of theology and law). The most famous jurists believe that Ijtihad is necessary in adjudication. They have indicated the narrative and rational reasoning about Ijtihad. The author of Javaher believes that only the Mojtahids who have all conditions are allowed to be a judge. On the contrary, some jurists, mostly the modern ones, believe that Ijtihad is not a necessary condition in adjudication and they talked in considering the lack of reasons that know Ijtihad a condition and the other persons who aren’t Mojtahid can also be a judge. This article explains the forgoing aspects and then with the study and research about the theoretical principles of the common Ijtihad of judge, according to reliable documents, proves that Ijtihad for judges is not necessary.

Contracts related to the agricultural sector in Islamic Jurisprudence allocate considerable part of the juridical issues. Identifying different kinds of contracts related to the ground to obtain the product, checking the legitimacy of the principles of the contracts and specifying its bases and influences are essential prerequisites to ordain favorable rules in the Islamic societies and especially in the Islamic Republic of Iran. Also different contracts about agriculture and injecting them to the banking system will motivate people to increase their activity in this section. One of the contracts is Mogharasah which in the viewpoint of most Shiite and Sunni scholars from the past till now is invalid. Shiite scholars know that invalid because it is Toghifi and Qarar. Sunni scholars know it as one of the certain contracts such as Bey and Ejare and invalid Mosaqat. In this comparative study on the contract and determining its nature and its different forms, we will examine the reasons that show it invalid. The result of the study is that Mogharaseh is an independent contract that would be legitimate by observing general rules of contracts. Also legitimization of this contract by Bey and Ejare and Solh is valid.

In Imam Reza's Ketabol Tafsir Masand, it is indicated in exegetical traditions related to the family subjects such as marriage customs, marriage regulations, abortion, alimony, man's disobedience. Disobedience means disagreement or controversy of two spouses that may cause abandonment of obligation or merely devoid of affection and good companionship. Man's disobedience which mentioned in Sure Al-Nisa, Verse 128 and exegetical traditions states that if the man commits this disobedience; his wife can compromise with him in all or part of her rights. This action is permissible, and her husband has to respect this compromise too. It should be mentioned that dowry, alimony and the right of oath are regarded as the rights not rules and accordingly can be compromised by the wife.

In contracts law, the most important issue is the timely enforcement of contractual obligations whereas the violation of the contracts meets numerous punitive regulations. In Iran's law, the theory of specific performance is enforced that sometimes causes cases of injustice depriving it from its utmost efficiency. Regarding many exceptions to this rule including option of delayed payment of the price, violation of the terms of the contract, rent and farm leasing, one can inquire whether it is possible to grant the right of termination and specific performance to the other party in case the contract is violated. It appears that by resorting to the religious and civil law and in line with international trade legal system, the basis of this right could be established and strengthened.

Typically, the doubt is a mental truth that may be occurred for any human being and it does not follow geographical principles, laws and situations and its occurrence do not require certain time. Although it may be a function of mental conditions affected by internal and external factors, certain time and place do not impact its occurrence and it bears limits, scales, strengths and weaknesses of the extreme of which is called ignorance; it is not a kind of ignorance of which humans are aware but it is a type of ignorance under which the ignorant is not aware of his/ her ignorance and takes a false thing as a correct one and a non-real thing as a real one and this definition of doubt is a comprehensive one in opinion of Sunni and Imamiyeh jurists and Islamic penal code. What causes the achievement of Dare principle and its execution by the judge and court is the occurrence and existence of valid doubt; because the doubt is the whole of subject and based on the literature it is the subject of Dare principle. But, it must be noted that any doubt cannot remove penal liability; instead the kind of doubt removes penal liability that not only meets all conditions but also its existence shall be proved in all aspects for the judge and court and the social, cultural and geographical position, intellectual atmosphere and personal life of ignorance and doubt claimant shall be considered too. The important point in the present article is that in the case that doubt is of subjective type, he/ she is known as subject to Dare principle if ignorance domain is limited to the intentional crimes. But the torts and or unintentional crimes that their mental element is due to fault and error do not change the nature of crime and removal of penal liability and with the lack of mental element of crime, its punishment is naturally waived or discounted.