فصلنامه پژوهش های فقه و حقوق اسلامی
سال یازدهم شماره 3 (پیاپی 40، تابستان 1394)

Rent is a bilateral contract and as such the other contracts، the considerations on both parts must be determined at the time that the contract is concluded. According to the general principles of contracts، if a consideration is indeterminate، the contract will be void. However، under article 3 of the landlord and tenant acts، 1977 and 1983، non-determination of leasehold in a verbal lease contract will not render the contract void and if there is difference between the parties، the court will determine the leasehold. This rule is an exception to the general principles and determination of leasehold by the court ignores the autonomy of the parties in tenant contract. In this article، the authors first examine the matter of non-determination of leasehold in the Jurisprudence and then they will describe the subject under Iranian laws.

The option of marriage rescission is one of the rights that civil law enacts for the couples following Shia jurisprudence and each spouse due to some defects in the other party can rescind the marriage contract. Of course، today with medical achievements، some of the defects that cause marriage rescission are treatable، and following treatment، the person recovers his/her health. However، a question which is raised is whether following the defect or disease treatment، the option to rescission created before the recovery will be abolished or not. To answer this question، there exist two approaches; the approach of most precedent Shia jurisprudents who do not think of treatment as abortive of the option to rescission and emphasize the revocation right even after the treatment. In contrast، some current jurisprudents and even some antecedents who have affirmed that through disease recovery، its resulting detriment also ends، and there will be no reason to continue the option to rescission. This paper deals with these two approaches، and regarding civil law condition، evaluates the accuracy of each of these two views.

Barter contract is the method of conditional import of goods or services for exporting them and their exchange instead payment of foreign exchange. Based on new international trade agreements، barter agreements are not included in the jurisprudence discussion; however، there is the same legal entity for the nature and description of barter trade in jurisprudence and domestic law. This article، with study in same legal entity، also refers to the jurisprudence which justifies this problem and concludes that one of the contracts listed in article 10 of the civil code is sufficient for necessary and validity of the contracts. On the other hand، with regard to the nature of barter contracts، it can be referred that descriptions such as common purpose، a composite contract، necessity، unconditional and valuable consideration as the same descriptions in barter contracts.

Irregular control of population growth sometimes leads the country to a serious challenge. This problem has been obvious in our current society since recent decades; so that Supreme Leader considers it as a kind of threat in his speech. Is childbearing a nature pertinence of matrimony or something following that? The main question in this study organizes the article. The author in this bibliotheca article which is written by analytical-descriptive method believes that childbearing is beyond the nature pertinence of matrimony or something following that; hence، one of the solutions for this challenge is that parents converse childbearing and the number of children after matrimony to a legal obligation by an espousal addition condition. In order to gain this purpose، simplifying marriage and expression and promoting religious training and obtaining life facilities are inevitable.

Wife’s insanity should be separated from other mental disorders in the discussion of family relationships. It is essential to distinguish incurable mental disorders from incurable ones، because the lack of such a distinction leads to the violation of dementia-affected wife’s rights. Thus، it is necessary to investigate the rights of such wives in receiving alimony from the perspective of jurisprudence. The present article examines the various forms of mental disorders and wife’s ability to obey her husband when he is aware of her condition. A dementia-affected wife is able to obey her husband and there are various ways to retain her rights. In case of curable mental disorders، she is able to obey her husband and nervous fits are only temporary. If، however، the wife does not obey deliberately she is not entitled to any alimony since she has the power to do so but she does not on purpose. In case of incurable mental disorders، the wife is unable to obey her husband due to the nature of such disorders، not due to Nushuz (marital discord); nevertheless، she is entitled to receive alimony although she cannot obey him.

The exile punishment is considered as one of the rulings of Islam’s penal system that is issued in terms of the guilty person’s gender and based on the interests and vices. According to the popular opinion، women are excluded in the cases of adultery and Qiadah، yet gender is not considered in the war-related exile. The present paper introduces a method of absolute issuance for women’s exile with a new look into the existing views and studying every related claim and a special regard for changing the subject considering the time requirements (e. g. new communication media becoming widespread، the increasing popularity of communications through cyberspace، road developments and facilities، and transportation، etc.) when choosing a method for administering the punishment (e. g. being deprived of mass media، audio-visual media، and participating in virtual social networks، etc.) i. e. assigning its administration method to the ruler. Although this analysis applies to men too، raising it on women’s exile is due to the fact that the justification of the act of opposing women’s exile is because of the possible vices that might arise from her being away from her town and country which will be inconsistent with her chastity and veil. Therefore، this justification pales into insignificance with the prescription of nonphysical exile instead of other methods and its generalization gains strength accordingly.

One of the general aggravating circumstances in all crimes is the repetition of crime. Iranian legislator، neither before the Islamic Revolution nor after that، had explicitly passed any provision about crimes entitled divine punishment. It was in the Article 136 of the Islamic Penal Code، adopted on April. 21، 2013، that the repetition of such crimes came to be approved. This Article says that: «If a person commits a crime entitled divine punishment in three times، and in each time he is punished، his sentence in forth time will be death penalty.» Contrary to this rule which is taken from the opinion of the most celebrities of Islamic jurists، there are at least two other opinions; the first، is the death penalty in third time، and the second، is the lack of permission for the death penalty