غلامرضا یزدانی

According to the appearance of Article 1041 of the Civil Code and the view of the jurists, a minor marriage is valid. However, since the minor himself is deprived of legal possessions, he cannot be in charge of concluding the contract and the contract must be performed by his or her father. With regard to the marriage contracted by the father, on the one hand, there has been some doubt that whether such a marriage is valid or, like a voyeur marriage, has no legal effect. On the other hand, assuming the validity and influence of the marriage, there was a doubt that such a marriage is established and irrevocable, or that the marriage is shaky and the minor (husband or wife) can terminate the marriage after puberty. In response to the above doubt, a group of researchers believe that marriage is established and irrevocable by the guardian, while another group believes that such a marriage is shaky and a person can terminate it after reaching puberty. In the present study, which is based on a descriptive-analytical method, it has been concluded that a marriage performed by a guardian is necessary, and the minor, whether girl or boy, after reaching puberty, cannot appeal for annulment.

Iranian Civil Code, in article 56, explicitly considers endowment (waqf) as one of the contracts, necessitating the acceptance of the designated beneficiary (mawqufon_ālayh) for the realization of a specific endowment, and the acceptance of the ruler in case of a general endowment. This is despite the emergence of differing viewpoints among Imāmīya jurists, including the following: 1. Endowment is one of the unilateral obligations (īqāʿāt), thus acceptance is not necessary regarding endowments. 2. Endowment is a contract; thus, acceptance is necessary in its realization in addition to the offer (ījāb).  3. Those who distinguish between specific and general endowments hold that in general endowments acceptance is not necessary, so it is considered a unilateral obligation (īqāʿ), however in specific endowments the acceptance of the designated beneficiary is the necessary condition for the validity of endowment.The present research uses the analytical-descriptive method and adopts the library approach. The findings show that endowment is one of the unilateral obligations, thus acceptance is not one of its conditions. Therefore, article 56 of the Civil Code needs to be revised.

Bones and human skeletal remains are among the most important materials found in many archeological excavations. Bones are composite materials consisting of organic and inorganic parts. Minerals constitute 70% of the dry weight of bones and organic substances the rest. This valuable material is degraded by environmental factors and microorganisms and its physical and mechanical properties are lost. Therefore, it is necessary to preserve bones. The Iron Age Cemetery of Tabriz with its buried human remains and the items found inside the tombs in the natural environment has been converted into a museum site. This paper describes the preservation and reconstruction of a sample of human skeleton belonging to this museum site taking into account the available pictures related to the excavation and removal of the factors damaging the skeletons. The results of the tests on soil EC, type of soil granulation and pH, the qualitative identification of the dissolved salts (anions), and the determination of the moisture content in the burial site indicated that the soil had a high moisture content, strong saline salts, and a loamy texture. The soil and skeleton had neutral (weakly alkaline) pH values. After carrying out the necessary studies, the skeleton was transferred to the workshop to be preserved and reconstructed and the soil in the bottom of the tomb was removed and desalinated with distilled water. Nano hydroxyapatite was used to improve the strength of the bones and Moldano and Simacryl R83 to reconstruct the lost parts of the skeleton. Plexiglas was employed as the insulator in the bottom of the tombs to cope with the rising moisture content.

Referring to jurisprudential foundations, a group of researchers recognized the independence of women's property and another group denied her independence in her property. Of course, Iran's civil law has clearly spoken about the independence of women's property and stipulated that women can independently own their own property. The issue of women's private property in Islamic jurisprudence is one of the challenging issues and in reaching the appropriate framework and proposing its views by analyzing the jurisprudential foundations are the ways to verify the views that have raised women's lack of ownership. The current research was conducted with the purpose of examining the jurisprudential foundations of the independence of women's private property before and after marriage with an approach to comparative jurisprudence and legal laws by using the analytical-documentary method. To this end, based on the analysis of the relevant sources, the opposite point of view was studied and the basic challenge of this issue, i.e., the confrontation of a woman's right to financial independence with the principle of family consolidation and the necessity of obeying her husband, was examined. The findings showed that in Islamic jurisprudence and legal laws, the principle of independence of a woman's property and possessions resulting from it, after marriage, is not in conflict with the principle of family consolidation and the necessity of obeying the husband.

The present research is an attempt to explain the point of view of the legal system of Iran and England regarding a complete and comprehensive review of the nature of sports contracts, which we have addressed in a descriptive and analytical method, and we are trying to answer the question that the nature of sports contracts in Iran and England What is? Pay attention to the fact that by examining the elements of the sports contract and comparing it with other similar contracts, the legal nature of the sports contract can be determined. It seems that in a general summary, the legal nature of sports contracts in Iranian law is one of private contracts, and it is a lease contract for individuals, and by determining this nature, the challenges that existed in similar contracts will not arise in this case; because the private contract has a broad meaning and includes all the matters discussed in the sports contract; Also, although it has limitations, it does not have a negative effect on the sports contract; Rather, it causes its consistency; But in English law, the legal nature of sports contracts is subject to the rules and regulations of the labor law.

The purpose of this research is the comparative study of civil liability resulting from the violation of sports contracts in the laws of Iran and England with a view on Islamic jurisprudence. The research method is descriptive-analytical and taken from library sources. In response to the question, what is the civil liability resulting from the violation of sports contracts in Iranian and English law with an approach to Islamic jurisprudence? It was found that athletes in sports clubs, like other legal entities, have rights and obligations, and failure to fulfill these rights and obligations - either contractual or legal - may cause the clubs to be held civilly or legally liable, depending on the case. The legal relationship of the sports clubs with the athletes and coaches is based on the employer-employee relationship and is subject to the labor law, except in special cases such as the regulations and circulars of the relevant federations. Clubs are vicariously responsible for damages caused by athletes and coaches to third parties, including opposing athletes and spectators. The basis of civil liability of sports clubs in Iran's legal system and Islamic jurisprudence and European countries is based on the assumption of fault. The most important duty of sports clubs is to comply with the club's safety obligations, which non-compliance leads to civil or police liability of the respective club.

The rules of evidence in legal lawsuits are confined to the cases mentioned in law, among which testimony of the witnesses may be referred to. One of the conditions governing testimony of the witnesses is that they must testify in certain and irrevocable tone what they have seen or heard. In other words, certain knowledge of the witness on the event is a major condition for legality of the testimony and the witness must testify what he/she has witnessed in person certainly and he/she cannot testify based on probability or conjecture. However, in terms of some issues such as affiliation, marriage, endowment, … it is said that the witness can testify by virtue of widespread tradition, although there is difference of opinion among the jurists and researchers on what cases and when such testimony can be made. A group of jurists believe in presumptive widespread tradition while others approve propositional widespread tradition as a useful and ordinary practice. Among them, Imam Khomeini is of the opinion that widespread tradition may be invoked in testimony only when it is constructive to certain and conscious knowledge; hence, legal and Sharia foundations of widespread tradition are not confined to certain cases either. Readdressing this issue is important because in many cases, there is no possibility of introducing witness or presenting testimony with legally acceptable conditions but widespread tradition exists due to prevalence of an issue. In this research study, developed through analytical-descriptive methodology, while laying emphasis on Imam Khomeini’s decree, with respect to necessity of evidentiary documentation of certain evidences in court ruling, except in cases presumptive evidence is exceptionally acceptable according to the law, it is concluded that presumptive widespread tradition – when constructive to certain and conscious knowledge – can be accepted as an evidence of testimony and its legal and Sharia foundations are not confined to certain cases. Rather, in any case where observation is excused or impossible, widespread tradition can be invoked to.

The way to manage waqf (Arabic: وقف, endowment) is one of the main issues in the endowment contract. The responsibility of the management of the endowed property rests with the administrator (Arabic: متولی) according to the opinion of jurists and also the civil law. The administrator is usually appointed by the founder (Arabic: واقف, Wāqif) during the endowment. Now, the question arises who will be the administrator, if the founder has not appointed the administrator? Article 81 of the amendment of the Civil Code has identified the custodian as the ruler in public endowments, which does not have a specific custodian. According to Clause 1 of Article 1 of the Law on Institutions and Powers of the Organization of Hajj and Endowments and Charitable Activities (Affairs), approved on December 23, 1984, the administration of general endowments that do not have an administrator or have unknown administrators and if the expedient of the endowment and the next generation or resolving the dispute of beneficiaries of an endowment (Arabic: موقوف علیهم) are subjected to the intervention of the guardian of the Islamic jurist in private endowment (endowment for the benefit of certain individuals) will be delegated to this organization from the date of approval of this law. However, the opinions of jurists differ where the founder does not appoint an administrator in the endowment. Some believe that the administration (trusteeship) is with the beneficiaries of an endowment in both types of endowments. A group considers the administration as the ruler in every kind of it. Some believe that the administrator in the general endowment is the ruler and the beneficiaries of an endowment bear the mentioned responsibility in the private endowment. It was concluded, by analytical-descriptive method and using the library method, in this study that the administrator of the endowed property is the ruler in cases where the founder does not specify the administrator in the endowment, and there is no difference between the general endowment and the private endowment in this regard.

As soon as the Foundation is made, the objective right that existed between the endowment and the endowment property disappears and the endowment property becomes the property of the endowment legal entity. Therefore, without doubt, the Foundation cannot make any seizure in the Foundation; for example, it cannot exclude some of the Foundation against them from the number of Foundation against them. The question arises as to whether the Foundation can retain the right to expel some of the Foundation against them at any time, provided that the Foundation is written on condition. The Civil Code has remained silent in response to the present question. Jurists and scholars disagree on the answer to this question. Some have considered this condition to be correct, and some believe that such a condition is invalid, and some have elaborated on the differences between the minor and the major. In the present study, which is based on a descriptive-analytical method, it has been concluded that if the condition for dismissal of some endowments against them is by providing a criterion that after the endowment, some endowments against each other are automatically dismissed, this condition is correct and whenever the provisions of the condition giving authority to the Foundation to expel some of the endowments is against them, such a condition is invalid and ineffective.

The “Bismillah stone” inscription is one of the significant works of the Qajar era in the Azarbaijan Museum of Tabriz since 1993. This work was crafted in Cairo, Egypt by an Iranian artist named Mohammad Ali Quchani known as Mirza Sangalakh. The artifact comprises five segments, collectively weighing approximately more than three tons. Most of damages caused in this work, considering its delicate decorations and substantial weight, has been attributed to its multiple relocations. In addition to very delicate carvings, the surface of the work is decorated with blue, gold, green, black, white and red colors. It seems that in addition to the ups and downs history of this work and its cultural significance within contemporary society, particularly among the people of Tabriz, only a review of its history will not be enough to express its status, value and unique characteristics. Therefore, a more detailed and scientific study could significantly enhance the understanding and appreciation of this work. Furthermore, for improved preservation and potential restoration of the work, documentation and scientific studies are needed for this magnificent work. To identify the materials and origins of existing colors, the application of scientific and laboratory methods was put on the agenda. To achieve this, two methods of classical chemistry testing and EDX analysis were employed to identify the present colors. the results confirmed the presence of indigo, copper rust (cuprous oxide), gold powder, Shangraf (cinnabar), bone soot and sheikh white (white lead) in the coloration of the artifact.

Regarding the religious endowment, a discussion is raised among the jurists and researchers about the position of the intention of closeness to Allah in religious endowment and therefore the result of its essence. The Civil Code, which examines the rulings on religious endowment, has not stated the necessity of stipulating the intention of proximity in religious endowment. There are three views among jurists in jurisprudence; some consider the intention of proximity in religious endowment as a condition of correctness, and some deny the condition of the intention of proximity. The third group also elaborate between general and specific religious endowment. They consider intention as a condition for general endowment but not specific endowment. The present study, using the analytical-descriptive method and relying on the library method as well as the originality of the absolute, the validity of the infidel’s religious endowment, the lack of reason for the necessity of the intention of proximity, it has been concluded that the intention of proximity is not a condition for religious endowment. The silence of Civil Law can also be attributed to the acceptance of this theory.

Undoubtedly, defining the type of cultivation and farming is not of the provisions of the validity of share-cropping (Arabic: المزارعه muzara'ah) contract and in the supposition of the literal and contextual unconditionally, the sharecropper (labor owner or tenant) can harvest every crop he desires but if the type of cultivation has determined the sharecropper has no right to harvest other crops. If the sharecropper has violated and harvested other crops, the question is what this violation will impact on share-cropping (Arabic: المزارعه muzara'ah) contract. Islamic jurists in reply to this problem have serious disagreement and the amount (number) of their opinions is more than 10 opinions. In the present paper which has used the descriptive-analytic method this outcome has been achieved in the supposition of the violation of sharecropper if it is not possible to oblige him to harvest the agreed cultivation the land lord has right to annul and therefore, the ruling of article 537 of the civil code which is the voidance of Share-cropping is not valid and should be reformed.

In cases where the custodian of a minor child makes a decision whose effects continue after the age of puberty and growth, the question arises as to what the status of the decision and the transaction may be. The civil law has not stated a clear mandate in this regard. In jurisprudence this is a highly divergent issue. In general, the theories and views of the jurisprudents are based on five theories; one group consider the financial authority of custodian absolutely right and influential and the other group consider the financial authority of custodian invalid. Some jurists distinguish between the assumption of knowing about the continuation of the financial authority of custodian after puberty and the assumption of lack of knowledge. Some have explained about the current or future expediency of the minor. In the present paper, which is based on the descriptive-analytic method, it is concluded that in cases where the custodian makes decisions about the minor’s property, which has spread after his puberty and maturity, then the decisions are not valid and the minor can deny the actions taken after reaching legal age.

There is a dispute among the researchers about permission effect time in unauthorized contract. The most important question in this subject is whether the will of the authorized owner has played an active role to determine the effect time of permission or he has an passive will to grant this effect. If the authorized owner has an active will, based on the idea of Kashf (revealing of contract effects) , the owner can allow the contract from the time of permission, and vice versa, based on the idea of Naql (transference of rights), it is possible for the owner to allow the contract from when it has been made. But if the will of the owner is passive, the time of permission effect will be determined by the legislator and authorized owner just has the permission to reject or accept the transference. Whenever the authorized owner grants the permission, based on the idea of Kashf (revealing of contract effects), the contract is valid from the time of conclusion, and based on the idea of Naql (transference of rights), the contract will be enforced from the time of permission, and the authorized owner could not ask for a different order. In the present article, which is based on the analytical-descriptive method, it has been concluded that the authorized owner has an active role and the unauthorized contract will be effective from the time of his permission. It seems that from the time of permission, the contract will be effective If the permission would not be approved.

One of the main issues in the waqf contract is the subject of the founder’s conditions and how to implement them within the waqf contract. According to the principle of Party autonomy, the primary principle in waqf is that the founder (waqif) inserts every clause (which is not in opposition to waqf) within the waqf contract. One of clauses that are doubt about their validity and annulment (voidance) is the provision to pay off the debts and expenses of the founder of waqf from the profits of the Waqf Asset. In reality the question is this if it is possible a person establishes the waqf of properties and meanwhile stipulating within the waqf contract that the expenses and debts of him are paid off from the profits of the waqf asset. There are different opinions among the Islamic jurists and law scholars. Some of the Islamic jurists and law scholars believe that it is impossible for the founder of waqf to profit from his waqf and they say in this case both waqf contract and clause are void but some others believe that the waqf contract is valid but the clause is void. With applying the analytic-descriptive method and utilizing the library method, it is drawn conclusion from the paper that both waqf and clause is valid and there is no difference between waqf created for public and waqf created for special purpose and even it seems that the profits of founder from his waqf has no disagreement with the concept of habs (Arabic: حبس literally means to prevent, restrain) of the property and applying its profits to others which has been presented in Islamic texts and it can be said it is permissible (legal) by Islamic law. Because such provision is not in opposition to the nature of the contract and more over this act is in harmony with the soul of waqf and the holy Islamic law giver’s taste because constantly He emphasizes on the growth and facility (ease) of waqf. From the other side with accepting and validity of such provision, the founders with worry about their future life can establish the waqf of some of their properties and meanwhile not being worry about the expenses of their future life and their families and also their debts.

Today in international arbitration tribunals also in international law the right to expropriate foreign investor property has been recognized as a legitimate right for the host state. In cases where the host government expropriates the property of the foreign investor, the question arises as to the basis and in what manner the damages caused by the host government's breach of the investment contract should be assessed. So far, the legal doctrine has not given a definite answer to this question. The procedures of the International Arbitration Tribunals in this regard are different. Considering the various opinions given in the ICSID Arbitration Courts as well as the Iran-US Arbitration, the market price of the commodities seems to be the most acceptable basis for assessing damages. In practice, different methods have been proposed to achieve this price, which can be categorized into three methods, the comparative method, the profit-based method, and the result-oriented method. In fact, depending on the case and the type of goods, the Arbitration Tribunal chooses one of the three methods for assessing damages to a foreign investor.

Waqf is of the juridical acts after its establishment, the relation between founder of waqf (Arabic: واقف waqif) with the Waqf asset (Arabic: موقوف mawquf) is dissociated and there is no real right for waqif in relation to the waqf asset. Since there has been stated a question if waqif can stipulate a condition within the waqf that he can add new persons as beneficiaries of waqf or not in future. If the contract is absolute, mostly, most of the researchers and Islamic jurists believe that for the interruption the relation between waqif with the waqf asset (mawquf), there is not the possibility of the inclusion and adding new persons to the beneficiaries of waqf. But there is disagreement between scholars if it is stipulated the inclusions of new persons to the beneficiaries of waqf. Some scholars believes that this clause is void therefore it is impossible to add new persons, in contrast to them, some other scholars believe that this condition is valid and the exigency of the believers must fulfill their conditions ”المومنون عند شروطهم“ makes waqif have this right. In this paper based on the analytic-descriptive method, this outcome has been taken that if the content of the provision is the authority of waqif to possess the waqf asset and to include everyone to the beneficiaries of waqf he desires, this provision is void.

Under the guarantee contract, the guarantor’s obligation is indebted to the person whom a guarantee is given (creditor), and the right of the creditor is granted to the guarantor’s obligation, the creditor does not have any objective (tangible) right to the guarantor’s property. The guarantor, in the releasement of the obligation of his or her own, determines the property of his/her property and pays it to the to the person whom a guarantee is given (creditor). The creditor is free to choose (disjunctive) any example of his/her property. Now, if during the guarantee contract, it is provisioned that the guarantor pays a certain amount of money to the creditor, what is the condition of such a provision in terms of validity and nullity? In this matter, there is a difference of opinion among the jurists. One group absolutely considers the condition to be valid, and another group has ruled that it is invalid, and another group considers the issue to be detailed way (including all particulars). In the present article, the author, using the library method and based on the analytical-descriptive method, has come to the conclusion that the condition of payment from a certain property, whenever it is foreseen as a condition in the proviso of guarantee contract (condition as an integral part of contract); the condition and contract are correct, but if they are as a qualification (provision) of contract, both the contract and the condition are null (void). Furthermore, if the condition of payment from a certain property is given to the same object from the very beginning so that the guarantor is not engaged as a result of the guarantee contract, then both the contract and the condition will be void.

One of the classifications of contacts is its division to the binding and permitted. Dissolving the obligatory contracts is not possible, save in the cases the option is proved to one party or both of them or they agree in cancellation of the contract. The binding contracts are also divided to optional and non-optional obligatory contracts. Iran civil code has remained silent in the (in-) feasibility of mentioning the option word in endowment contracts. Thus, there is controversy among the lawyers in this case. Likewise, there is disagreement in this regard between Imamiyah and Sunni scholars. Some have deemed the issue of option correct in the endowment contract while others have deemed such an option null and void but the contract is correct per se. It is concluded in the present paper that the condition of option in the endowment contract is correct and civil code’s silence in this respect is due to its authenticity on the part of the law-maker.

The principle of the sovereignty of will, when accompanied by traditions such as "Al-Momenoon al-Ihrrvmvm", is the result of the verity of any condition which is entered into the contract, except in circumstances which have been proven by the external reason, the void or the incorrectness of them. One of the conditions that is doubtful is the mortgage condition while making surety. In this way, the deposit of a surety in favor of the guarantor or the content of the loan will be mortgage. The mortgage condition in the contract of guarantee is considered as the subject of jurisprudence and it seems that the first jurisprudent who has mentioned this issue is Seyed Yazdi. Since the design of this issue, the jurists have disputed the validity of this condition. The present paper uses a descriptive-analytical method based on the library method. This study seeks to verify the validity of this condition. In my opinion, the benefit of the mortgage condition, whether it is in favor of the guarantor, should be regarded as a valid condition.

If one of the exchanged things in a contract is defective, the injured party has the option of defect and can cancel the contract or claim arsh (the compensation for the difference between a defective and sound thing) instead. While when the object being leased is defective, the lessee holds no right to claim arsh according to the Iranian Civil Law. Whereas apparently the Civil Law, specifically article 456, grants the right for claiming arsh to the lessor when the payment is tangible property and is defective. This kind of approach to Civil Law is inferred from non-famous jurists’ view which, considering jurisprudential sources and the nature of arsh, seems weak and is not a suitable source for legislation. Arsh, in fact, is peculiar to sale contract and generalizing it to other contracts, including lease, is not allowed. Therefore, it is necessary to amend the article 478 of Civil Law regarding lease contract, and to revise the article 456 of Civil Law.