نشریه آموزه های فقه مدنی
پیاپی 4 (پاییز و زمستان 1390)

Prohibition of taking wage for duties obligations as a juridical rule has been agreed upon by Jurisprudents. Nevertheless, most jurisprudents have discussed the permissibility of taking wage for duties obligations by dividing them into two parts: disciplinary obligations and non-disciplinary one. Since the reasons advanced for this rule in later juridical books include some rational arguments, the problem of non-

One of the important issues of the right of mortgaged is the legal situation of the transmitting contracts of the property including mortgage property by mortgagor. In accordance with the legal famous view, the influence of mentioned contracts needs the permission of the mortgaged in this respect. The important reasons are consensus, some traditions and incompatibility of mentioned transmitting possession with the rights of mortgaged. But the mentioned cases are disputable, because the consensus is depending on the reason and it is invalid and the tradition is also questionable in document and denotation. Incompatibility of the mentioned taking possessions with the right of mortgaged is doubtable too. Legal and juridical studding, it seems that the idea that transmitting possessions is not incompatible with the right of mortgaged and these two can behand of mortgaged and making option for the mortgagor is incompatible with the collateral of that property. Therefore, we must discuss whether the contract of liability is an obligatory contract or authorized one and if it is an obligatory one, may it have an option? If it is doubted, what is the principle in this issue? What is the effect of the condition of option in the contract of liability? If liability dose not bear an option, inserting the condition of option causes nullity of the condition or invalidate both the contract and the condition? What about the conditional option or option of incorrect description? If both parties insert a condition or a description in a contract and one of them will be violated, is there an option for the party that the condition or description was in his favor

The term naseb (anti-Shi’a) has come in the hadith of Ahl-Bayt (A.S) and in the words of Shiite jurisprudents abundantly and many commands, including, deprivation of civil rights (like marriage with a believer, not inheriting), deprivation of social and spiritual rights (like boycotting and renouncing him and not permitting to pray with him) have been imposed upon him. In other aspect, there is dispute among Shiite jurisprudents about the concept of this title. Juridical arguments denote that the meaning of this title is a person who is enemy of Ahlol-Bayt and regards this enmity as a part of his religion. The most of jurisprudents believe that nasebi is a person who is the enemy of Ahlol-Bayt and makes it clear in a way. In contrary, some wanted toexceptionality of rational decree has been posed against permission of taking wage for obligations. Given to this problem, later jurisprudents have attempted to find solution for it in different ways. This article has analyzed and criticized sixteen solutions that have been posed in this regard and at last it has regarded one of the solutions that have been provided by Imam Khomeini as the best one.

Monetary debts in jurisprudence have several commandments that some of them are disputable in view of jurisprudents. For example necessity of paying debt in the case of financial ability and necessity of granting respite to him in the case of insolvency and prohibition of severity about him and his imprisonment are the commands that Muslim jurisprudents are in agreement about them, but there are issues like necessity of doing business for paying debt and the degree of influence of individuals’ rank in exceptional debts are some of challenging and disputing issues. Although the marriage portion is a kind of debt and has the orders of other debts, it differs from others in some issues. What come in this article are considering the juridical evidences of the commandments of the debts in their different stages, analyzing the cases in question as well as some special commands of debtors of marriage portion and criticizinggather together has a solid reasoning, even though the most of lawyers and judicial procedure tend to legal famous view. However, there is dispute about the influence permission of the mortgaged and the famous view regards it as the waiver. But in spite of the permission or confirming of the mortgaged, it seems that remaining of the right is preferred except cases that permission denotes that the mortgaged has intended to waive his right.

There are two kinds of religious commandments: one is a command that is established for a thing as an action regardless of the states and knowledge and ignorance of the obligatee towards it like necessity of praying, fasting, and prohibition of eating corpse. It is called "primary real commandment" too. The other is a command that is established for a thing given to the special states of the obligatee like necessity and emergency. It is called "secondary real command" as well. For example the primary command of eating corpse is prohibition but in the case of emergency it is permitted and the primary command is removed. Where the obligatee can’t act in accordance with the primary command for special reasons, it is constituted with the secondary one. Secondary command is regarded as a real command not superficial. Quran has stated primary commandments as well as some secondary one. Each of them is as a general rule that conform with many cases. Stating criteria of primary and secondary commandment, some examples have been stated in this article.

Deduction and the way of dealing with it are one of the oldest issues in the jurisprudence and principles of the religious schools. Meanwhile, general approach in Shiite school has been a negative one during the history and is still continue, but the important subject that we should pay more attention to it irrespective of ideas of jurisprudents is their dealing with the deduction in juridical books. It can be found in juridical books some cases that seem to be the cases of using deduction. This subject is incompatible with the famous view of Shiite, that is, nullity of deduction. The present article with this approach and depending on the books of Sheikh Toosi has investigated the cases that have been specified to their being deduction or the definition of the deduction conforms to it. Hasn’t the reality and the nature of the deduction in view of jurisprudents have a completely clear concept so that new definition can be given for the correct and incorrect deduction or the problem goes back to the practice there happened a kind of carelessness or even though they seem deduction apparently and at first glance, these cases are not invalid deduction in principle. It appears that to provide the definite answer to these questions, it is necessary for jurisprudents to study the question of deduction for the second time.

The nature of governmental command, its scope and its function in solving new issues of society are the most important ones that have been considered in this article. It can be said about the nature of governmental command that the exigency of the arguments is that the governmental command is neither regarded as the primary commands nor the secondary one but it is a third one. Although there is apparently a serious and deep dispute about the scope of governmental command in a way that each idea negate the other (one says that jurist guardian is just an executive of the legal commandments and he has no authority outside it and one says that he can not only establishes command outside the legal framework but also if his authority is limited to the religious commands absolute guardianship of the jurisconsult will be useless), if the words of the two parties are investigated, it will be clear that there is not only no serious and deep dispute but rather it should be said that there is no dispute in reality and content but just in verbal. It can be said about the third issue that if all new issues of the society are not solve with the governmental command, undoubtedly it has a basic role in solving new problems of the society.