نشریه آموزه های فقه مدنی
پیاپی 6 (پاییز و زمستان 1391)

Possessions and trading of the children are discussed both in jurisprudence of transactions and today’s law. In view of majority, this verse has mentioned the two characteristic of growth and maturity for delivering of property to the orphans and children; but there is disagreement among jurists and commentators that both of them must be accomplished or one of them will be adequate. Considering the opinions of jurists and commentators, it seems that the variable interference of the growth in trade of children, regardless of whether or not it coincides with the maturity, to be worthy of more serious reelection. Examining the mentioned verse in a descriptive-analytic way, this paper concludes that the element of growth is adequate for the permissibility of the intelligent minor in financial possessions.

The right of refraining from carrying out the commitment in order to implement the commitment of the other party, is called right of Lien. The right of Lien has been accepted by Islamic jurists for a long time. No one has doubted about its accuracy in Shia’s jurisprudence until Mohaghegh Ardabil. And after it was understood illegitimate by him and was followed by some researchers, seyyed Ameli again replied the doubts of Mohaghegh Ardabili and his followers. The origin of the right of lien should be investigated in the implicit will of the parties. Therefore, the right of line is extended not only to all contracts and transactions, but also after the dissolution of the contract.

Among the issues that have long been raised in Shia’s jurisprudence and has grown alongside of the evolution of jurisprudence is the issue of the prohibition of receiving Fee on obligations in a way that it is accepted as a juridical rule by jurisprudents. This rule has no evidence from narratives, in one hand, and it is based on the fame, on the other. Some recent jurisprudents have attempted to lay the foundation of this rule on the reason in different ways. There are three approaches in this respect: 1- obligations are outside of ownership (overpower); 2- there is contradictory between the necessity of operation and ownership of the lessor on obligations; 3- obligations are regarded as debt. This paper has criticized and analyzed these three approaches and has doubted seriously about the intellectual authority of the evidence of this rule.

Temporary marriage has been adopted in Iran Civil Code and it is special to Shiite jurisprudence. It is used from the Quran and Hadith that this type of marriage is permissible and there is no reason for its banning. The reasons that have been advance for its banning by Sunnis are based on a particular view of the second caliph. A first look at the subject suggests that this decree is commanded on the base of necessity in order to reduce committing sin; since promoting this type of marriage has implications that are not good in the case of there is no necessity or is not in its place. In this paper, at first the concept of the temporary marriage and its Quranic-narrative documentations have been studied and then its consequences have been evaluated

Temporary marriage has been adopted in Iran Civil Code and it is special to Shiite jurisprudence. It is used from the Quran and Hadith that this type of marriage is permissible and there is no reason for its banning. The reasons that have been advance for its banning by Sunnis are based on a particular view of the second caliph. A first look at the subject suggests that this decree is commanded on the base of necessity in order to reduce committing sin; since promoting this type of marriage has implications that are not good in the case of there is no necessity or is not in its place. In this paper, at first the concept of the temporary marriage and its Quranic-narrative documentations have been studied and then its consequences have been evaluated.

According to almost majority of Shia’s jurists, guarantor can guarantee the debt of a debtor without being aware of his debt, even if its amount is higher than he thought. Following Shia’s jurists, the Civil Law in Article 694 has also expressed clearly that it is not necessary to know the quantity, qualities and circumstances of the debt that he warrants. In contrary, the opponents have referred to the evidences such as negation of the risk, inaccuracy of commitment to the financial health in the case of ignorance. In this paper we have considered the reasons of those who believe in invalidation of this claim and it has been rejected, but the view of those who believe in its validity has been proven. Jurisprudents, who believe in accuracy of liability of the unknown debt, have provided it to the possibility of knowing it after contract of liability and if it is not possible to know the amount of the debt, it will be invalid. Acknowledging this condition, this paper has criticized the idea of jurists and legislators that the liability of unknown debt is invalid. Thus, it has been suggested that the second part of the Article 694 of the Civil Code be removed.

“Testifying” has always been proposed as the reason for proving the claim in legal systems, yet in our country due to lack of requirement of the witness to testify on the one hand, and considering the fact that the basic principle is the exemption of denier, testimony as the reason of proving has to some extent lost its efficiency. This article attempts to consider the requirement of the witness to testify in the jurisprudence and the law of Iran and a number of Western and Arabic countries. In the first chapter, after discussing and studying the narratives, verses and views of jurisprudents, the writer has come to the conclusion that bearing witness (to witness) is not obligatory, but obligatory of testifying in terms of its conditions is accepted by Muslims unanimously and refusing from bearing it is considered as a great sin. Studying the testifying in the law of Iran and in a number of western and Arabic countries in accordance with the documents, the second chapter has reached to this conclusion that the Laws of Iran, in contrary to the Islamic jurisprudence, have not accepted the requirement of the witness to testify, but the Laws of western and Arabic countries, in agreement with the Islamic jurisprudence, have regarded the refusing to testify as a crime and considered punishment for it.

One of the very important subjects of the endowment in jurisprudence and law, in regarding to its theoretical and practical aspect, is the right of underwriting or the precession that the person receives an amount as the right of underwriting in exchange of the priority which is created for him in this property and renewing of the lease. In this article we have dealt with the roots of this issue in view of the jurisprudence and law and we have proven that we cannot consider a legal history for the precession and consist it with the land-right in jurisprudence; likewise, consisting it with the right of business and trading or the right of fee for unlocking, whether legal or juridical, is not without difficulty. Thus, to prove its legitimacy we should refer to the Article 10.