فصلنامه فقه
پیاپی 102 (تابستان 1399)

Speech is one of the benefits of tongue. In some cases, the crime of tongue is accompanied by a speech impairment. On the one hand, in Articles 611 and 613 of the Civil Code, the legislator has considered the unpronounceable letters in relation to all letters as the basis for determining the amount of diya (blood money) in the simultaneity of speech impairment and cutting of the tongue, according to most of jurists' viewpoints and in the last article, it is said that the diya is determined equal to multiple crimes. On the other hand, in Articles 545 and 546 of the Civil Code, in the subject of crime on its benefit and place, a higher diya has been set. The jurists' viewpoints differ in this regard, and in addition to the most of their perspectives, a small number of jurists considered the sum of the two diyas of speech and tongue as the criterion, and some believe that the maximum amount of diya of speech and tongue must be set. In addition, some have given the possibility that the criterion in determining the diya is the level of tongue that has been cut. The well-known viewpoint of the jurists and others is absolute in this regard, and in the fatwas, there is no distinction between a state in which there is a single and multiple criminals. The present paper, by evaluating the fatwas and their arguments, has achieved the innovation that the narrations under discussion have the weakness of a document or the shortcoming of arguments in the simultaneity of speech impairment and cutting of the tongue and the claimed consensus faces major and minor obstacles. Therefore, in order to determine the amount of diya in the simultaneity of speech impairment and cutting of a part of the tongue, the viewpoint about the maximum amount (of the diya of speech and tongue) in terms of practicing the arguments of diya of each speech impairment and cutting of the tongue was accepted and the criterion for the letters was considered to be all the letters of the language spoken by the victim.

According to the jurists and based on the legal articles, in order to conclude a sale, writing a practical or verbal contract is necessary, and according to Article 340 of the Civil Code, the words and phrases of demand and acceptance must be clarified in the meaning of sale. However, in some cases of electronic sale, verbal or written demand and acceptance is not used and instead, the transfers are done without exchanging and only by selecting a part such as "Send to cart" or "Order registration" and sometimes by clicking on the picture. As a result, the validity and necessity of electronic sale without the occurrence of exchanging and without the usual demand and acceptance, is questioned and the prevalence of electronic sale has caused public demand and the need for a jurisprudential answer to this question. In order to answer the above question, and to prove the need for the composition of the sale without exchanging - using the jurisprudential method - this paper has examined the verbal arguments for demand and acceptance and based on the results of electronic data in electronic sale, it has been concluded that the need for jurisprudential arguments is the validity of the conclusion of sale with any customary implication, even non-verbal. Therefore, the contract of sale is concluded using electronic data - if they indicate the occurrence of the sale and Article 340 of the Civil Code needs to be amended and it should be noted that the demand and acceptance with any argument of the sale - both verbal and non-verbal - is sufficient.

The term "Ja'efeh" (an injury that the instrument such as knife is inserted into inside the body and it is equal to one-third of diya) is used for one of the injuries in criminal jurisprudence. According to Article 711 of the same law, the Islamic Penal Code has defined and stated the rulings of Ja'efeh injury. The last part of the article is as follows: "If the instrument enters from one side and exits from the other, it will be considered as two ja'efeh injuries." As can be seen from the explicit text of the article, whenever the instrument enters the abdomen on one side and gets out of the abdomen from the other side, as if it enters the abdomen and exits the waist, then two diya of ja'efeh will be required. This view of the legislator is based on one of the three views in criminal jurisprudence. The other two views are as follows: Some believe that in the mentioned injury, the diya will be a ja'efeh along with an arsh (compensation for injury) and another group of jurists believes that the aforementioned injury is not ja'efeh but a special injury with a diya of 433 dinars and a third of a dinar. The present paper criticizes and examines the existing arguments based on a descriptive-analytical method and seeks to prove the view that the diya for the injury is 433 dinars and one third of the dinars.

Most jurists - in the field of ijtihad and taqlid - have considered the permission of precaution in pure Tawasoliat (the deals in which it does not include the intention of proximity to God) as an obvious matter and have ignored it and paid less attention to its aspects. However, when one pays attention to the scope of the Tawasoliat rulings, there are rulings in which the decree of the precautionary measure is not clear and is accompanied by an obstacle. These obstacles exclude these rulings from the scope of the precautionary measure in Tawasoliat. The major question of the study is to discover these exceptions of precaution in the tawasoli rulings. This paper, with the aim of explaining in detail the general ruling of the precautionary permission in tawasoliat, examines the most important exceptions of this ruling in jurisprudence by analyzing the qualitative historical content. The most important rulings that are excluded from the precautionary permission are in the two categories of intrinsic exceptions and incidental exceptions. The first category is the rulings that are not inherently cautious; such as the scientific, belief and cautious rulings in conflict. The second category includes some topics that are subject to caution and cannot be considered as permissible, such as harm, hardship, difficulty, and denial of religion, which in some cases in other certain circumstances there is no possibility of precaution.

Temporary marriage with the intention of creating Mahramiat (In Islam, a mahram is a member of one's family with whom marriage would be considered haram; mahramiat is the state of being mahram) between one of the spouse and a third person has become common with the prevalence of adoption in Iran, especially among religious people. For this reason, this paper examines and investigates the validity and invalidity of this type of Mahramiat as a type of marriage, and the main question is whether it is possible to correct this type of marriage contract. For this purpose, through the library method, the views of jurists in this field and their arguments have been studied. During the study of the different viewpoints of Shiite jurists and their reasons in this regard, the validity of this type of Mahramiat has been faced serious challenges, because the spouses do not have a serious intention to get married. Although they intend to write a sigheh (marriage vows), "intention" is one of the components of any marriage contract. In addition, basically, such marriages have not been reported in the Shari'a tradition in the era of the Imams (as). Furthermore, the validity of this type of Mahramiat cannot be relied on general and absolute arguments for the validity of marriage, since there exists doubts in its being marriage.

In option of defect, most of the Imamiyah jurists believe that after the appearance of defect, the customer has the right to abolish and set arsh (compensation) at the same time. The Article 422 of Civil Code based on this viewpoint states that after the deal, if it becomes clear that the goods is defective, then the customer has the authority to take arsh or abolish the deal due to the defective goods. However, the study that has been carried out through descriptive-analytical shows that the arguments of this theory can be accepted. Therefore, using the general hadiths of "al-Nas Mosalatoun ala Amwalahom", "la Yahelo Mal Amro Moslem", "Adeloh la Zarar" as well as Jamil ibn Darraj's narrative and other arguments means lack of choice and the only way to receive arsh is related to the impossibility of Rad (abolition).

Transgender and its related issues in jurisprudence have long been studied and examined. What needs to be reviewed and carefully considered in this regard, and so far it has not been given the necessary value in terms of jurisprudential research, is to examine the ruling on transgender in people who have sexual dissatisfaction. This complication is considered as a mental and behavioral disorder and its sufferers fall into the category of a certain sex in terms of biological divisions. According to the famous fatwas of the jurists, there is no doubt that it is permissible to change the gender truly and turn a man into a woman and vice versa, as well as to change the gender in non-binary gender people. However, what will be examined in this study through an analytical- descriptive method is a thematic review of transgender in transsexual people, whether or not they are included in the transgender permission ruling. In this article, by referring to the process of identifying the subject and extracting related evidences from fatwas and narrations, the impermissibility of transgender in transsexual people is obtained. However, in the Islamic Republic of Iran, whose laws - according to Article 4 of the Constitution - must be regulated according to Islamic standards, this practice has been practiced for many years with the permission of the judiciary and their supervision over a significant number of these patients.