محمود کاظمی

The field of financial rights is divided in a number of ways within the context of legal knowledge. One of the most fundamental of these divisions is the distinction between "objective" and "personal" or "in personam" rights. The genesis of this distinction can be traced to Roman law. It subsequently permeated the Western legal system, including that of France, following a protracted journey. The foundation of this differentiation lies in the legal tenets governing litigation, the enforcement of rights, and the conduct of court proceedings. It has now become the primary consequence of embracing this differentiation in the proceedings and the exercise of rights.
However, over time, a substantial number of rulings have been issued on this matter. An objective right is a right that an individual possesses over an external object, which they are able to exercise independently, without the need for the involvement of others. In contrast, a personal right is attributed to the entirety of a particular individual's property, and the holder of the right does not possess dominion over a specific asset belonging to the debtor. This article's focus is on examining the existence of the division of financial rights into objective and personal categories and its implications in Islamic and Iranian law, despite the existence of differing interpretations.
In examining this issue and related issues in this article, the descriptive analytical method is employed, and materials are collected through the library method. This is done with the aim of investigating the concept, history and distinction of objective right from personal in Western law, and of re-examining the place of this separation and its implications. In examining rulings in Islamic jurisprudence and Iran's law, as well as the latest developments in Western law (France) and Imamiyya jurisprudence, this article aims to delineate the border between them in Iranian law. It will then proceed to examine some of the most important examples of this distinction, and elucidate the significant practical effects that arise from it.
In response to this, the authors argue that in Islamic law, the objective right is distinct from the personal one, and that there are specific rulings and effects associated with each. This is because, within the field of jurisprudence, the financial right is not divided in this way. Additionally, the distinction between objective and personal rights in Iranian law can be discerned from the Civil Code and the Code of Civil Procedure. However, with regard to the concepts of object (ein) and debt (dein), as well as the scope of objective and personal rights, there are notable differences between the legal systems of Islam and the West, which have been the subject of extensive investigation.
In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code.
In Islamic law, although the jurists have not explicitly articulated this distinction between rights and obligations, they have instead distinguished between "right" and "melk" as well as "ain" and "dain," which is a division of property based on its existence in the world.
In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code.
However, there are rulings in jurisprudence that cannot be justified except on the basis of distinguishing between objective and personal rights. This demonstrates that the jurists were aware of this division and accepted it. Examples of such rulings include the mortgagor's right of precedence over the mortgaged property over other creditors, the dissolution of the mortgage contract, rent and usufruct in the event of the destruction of the subject of the contract due to force majeure, and so forth.
In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code.
In Western law, "ownership" represents one of the most evident instances of an objective right, with its foundation invariably situated in an external specific object. However, in Islamic and Iranian law, the ownership right exhibits a distinct character, contingent upon the object in question, whether external or general. If the property in question exists in the external world, In Islamic and Iranian law, ownership is an objective right. However, since general property can also be the subject of ownership, this assumption of ownership is not objective. This is to say that a person may be the owner of another person's liability (zemme). In other words, every creditor is the owner of the debtor's zemme. In conclusion, it is notable that in Western law, the term "object" is used in contrast to "obligation," and the concepts of "objective right" and "personal right" have been established as a foundation for this distinction. However, in Islamic law, there is no such contrast between "object" and "obligation." In other words, in Western law, the term "object" is synonymous with a material object that exists outside the legal system. However, in Islamic and Iranian law, the term "object" refers to both an external object, which is a material object and is a "definite object", and also to the object in zemme, which is the general object and "ein koli dar zemme" is actually the same as "debt". "Dein" is defined as "general property under zemme". This fundamental distinction between the concept of "object" in Western and Islamic law has prompted some scholars to question the existence of objective and personal rights in Islamic law. This article addresses these concerns and provides a comprehensive analysis of the subject. It should also be noted that in Islamic law, "dein" is the opposite of "specific object" (ein moayan) and the word "object" is used absolutely in contrast to "profit".
In conclusion, it can be stated that the distinction between objective right and personal right in Western law, including in France, is a well-established concept with roots in Roman law. This distinction has significant implications and has shaped the structure of the French civil code.
In contrast to Western legal systems, Islamic law distinguishes between the concepts of debt and obligation. In the event that the subject is a general obligation, the term "obligation" is also "debt"; otherwise, it is solely an obligation. In Western law, absolute obligation constitutes a personal right, with the rules of the personal right pertaining to it. However, in Islamic law, the distinction between debt and obligation means that some rules of the personal right are related only to debt, not pure obligation. From the perspective of civil procedure law, this division exists in Iranian law, with lawsuits divided into personal and objective lawsuits.
Furthermore, at the execution stage, once the claimant's objective right has been established and a definitive judgment has been issued, this judgment is enforceable against any individual or entity in possession of the property subject to the judgment, even if they are not a party to the proceedings. Consequently, the expropriation decree is enforceable against any possessor, even if they are not a party to the lawsuit. However, when the court judgment contains an individual condemnation of the obligor, it is enforced only against that same person.

Given the increase in aged population and the challenges and problems associated with aging, planning and policy-making to improve the quality of life of older adults is of crucial importance. This study aims to investigate the mediating role of resilience in the relationship between religiosity and psychological well-being in Iranian older adults.

This is a correlational and cross-sectional study that was conducted in 2022 in Mianeh county in East Azerbaijan province, Iran. Participants were 319 older adults (aged ≥60 years) who were selected using a convenient sampling method and based on inclusion criteria. The tools used to collect data included the Glock and Stark’s religiosity scale, the Connor-Davidson resilience scale, and Ryff psychological well-being scale. The collected data were analyzed using correlation test and path analysis in SPSS software, version 26 and LISREL software, version 2.10 applications.

The mean scores of religiosity, resilience, and psychological well-being were 56.90±26.42, 86.16±16.46, and 76.04±10.81, respectively. All correlation coefficients were significant (P<0.05 or P<0.01) and revealed that high levels of religiosity and resilience are associated with higher level of psychological well-being. Furthermore, based on the path analysis results and the obtained t values (≥1.96), all paths were significant, except for the indirect path between the “consequences” component of religiosity and psychological well-being. Therefore, the proposed model showed that the belief, emotional, and practice dimensions of religiosity had a indirect and significant relationship with psychological well-being through the of resilience. There was a positive and significant relationship between the dimensions of religiosity and resilience, as well as between resilience and psychological well-being.

The findings emphasize the mediating role of resilience in the relationship between religiosity and psychological well-being of Iranian older adults. It is recommended that authorities in Iran should pay attention to the effect of religiosity, resilience, and their education to promote the psychological well-being of older adults.

The Action to quiet title (real estate ownership Law suit) has had ups and downs in Iranian Jurisprudence. After the approval of the registration code, the courts considered the official document as the only way to prove the ownership for real estate. This procedure has changed over time; especially after the Islamic Revolution the courts dealt with the Action to quiet title with private document or any other type of evidence and on this basis they accepted the annulment of the official document. In the 1370s, the court's procedures changed to support the official documents of ownership and the registration code. In such a way that dismissal lawsuit was not accepted except by the owner of the official document. Due to the doubts raised by the Guardian Council regarding the legitimacy of the requirement of the registration to prove ownership and transfer of properties, the Jurisprudence was again inclined to accept these types of lawsuits, and annulment of official document based on private document or opponent transactions, increased in the courts. Despite that, currently, most courts do not accept lawsuits for proof of ownership that are not accompanied by the requirement for the preparation of an official document. According to the existing regulations, including Article 62, this procedure can be criticized and is a kind of clear violation of the law . In this article, we have tried to review the evolution of the action to quiet title in the Jurisprudence and criticize and analyze some important Judgments have issued in this regard.

As defined by the existing positive law, it is clear that debt is a property that can be transferred and traded similar to other forms of corporeal property, but because it is a constructive existence and is subject to contingent liquidation, the economic value of these debts is greatly determined by this. A lower liquidity contingency of the debt will result in a lower economic value. In some circumstances, it may be more difficult to liquidate a debt, and the likelihood of its collection is reduced. There can be several reasons for this condition, including the quality and characteristics of the debt, such as conditional debt, contingent debt, or future debt, as well as the situation of the debtor, such as insolvency or bankruptcy. In addition, there may be a dispute between the creditor and the debtor regarding the existence of the debt or its characteristics. This type of debt is referred to as a debt in action. In this case, the creditor cannot expect that the debt will be liquidated in a manner that is consistent with his desire, because the debtor, through whom the debt must be collected, unlike the creditor, denies the existence of the debt in its origin or some of its characteristics. In the event of a dispute between the creditor and the debtor, which may be caused by a difference in the existence and amount of the debt, or by a difference in its characteristics and function, it is less likely that the debt will be liquidated in the manner the creditor anticipates. When debt is assigned, the assignor does not guarantee the payment of the debt, but in any event, the existence of the debt is required. Thus, as with other contracts, a pillar of the validity of an assignment of debt is the existence of the transferred debt at the time of the assignment. It is, therefore, necessary to examine whether or not a debt in action that is disputed, whose existence is doubtful, can be transferred, and, if so, what are its effects and consequences? In Roman law, the assignment of debt in action was prohibited in the early periods due to the fear of speculation, but in later times, due to the benefits that were envisioned for such a transaction, it was permitted. As part of the effort to prevent speculation and safeguard the rights of the debtor, this right was provided for the debtor to pay the consideration of the assignment to the assignee, that is the amount that the assignee paid to the assignor to settle the dispute and acquire ownership of the debt. The countries that followed the Roman legal system in the later periods, such as France, accepted the assignment of the debts in action. Despite some hesitation in Iranian law and Islamic jurisprudence in this regard, the validity of this type of assignment of debt should be accepted by general contractual rules. The validity of this contract may be questioned initially due to the uncertainty, the lack of knowledge about the object of the contract, and the inability to deliver the object, however, by examining each of these objections, it can be demonstrated that these objections are irrelevant. Accordingly, the assignment of debts in action should be regarded as valid under Iranian law and Islamic jurisprudence. Due to the special nature of this type of debt, there are certain consequences associated with it. Unless otherwise agreed, the implied intent of the parties should be interpreted as a waiver of the warranty of title. As a result, the assignee may not be entitled to restitution of the consideration that has been paid to the assignor if, after the assignment of debt, the assignee claims against the debtor for recovery of the debt and it becomes evident that the debt did not exist when the assignment contract was concluded. Moreover, it is important to note that, since the fact that the debt is disputed is considered a defect of said debt, and also, since every contract of assignment of debt contains an implicit condition that the debt to be transferred is not denied by the debtor at the time of conclusion of the contract, the agreement may be terminated if the assignee is unaware of the dispute.

We show that there is a one-to-one correspondence (up to isomorphism) between maximal subgroups of a Clifford semigroup and isotropy subgroups of its universal groupoid. We prove that a Clifford semigroup is a union of amenable subgroups if and only if its universal groupoid is amenable. We give an example of an amenable Clifford semigroup that its universal groupoid is not amenable.

The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application in the law have limited the space for the effectiveness of Mudarabah. It seems that this dispute can be resolved in the context of the modern legal system and with the presence of the school of positivism, which has an emerging role in the subject laws, along with the generality of Muslim jurisprudence. In fact, the result of the interaction of the two schools is the reason for the implicit establishment of sovereignty that positivism refers to in the heart of the laws. This research reveals that the meeting place and the creation of disagreement in the discussion of guarantee conditions in Mudarabah, in line with the rules of the school of positivism, can be resolved by maintaining the ideals of legal and jurisprudential justice and economic efficiency. Therefore, the application of the law in attaching a new contract to Mudarabah is not necessary, and it is possible to explain the investment with the condition that the investor does not guarantee the damage to the capital in the form of identifying a new contract.

If under the circumstances, it appears that the agent has authority to employ the sub agent for his principal, expressed or implied, then the fundamental question is whether the sub agent is the agent of the principal and is directly responsible to him or he is the agent of the original agent and only is responsible to him for his conduct. If the principal express determine that the agent has authority to employ the subagent for his own or the principal, then the agent must flow his opinion; But when that authority is absolutely, there are many different view. In Islamic Law (Fiqh), the famous view of jurists is that the subagent is the agent of principal. However, in French and Common Law, in this situation the subagent is the principal’s agent. If the subagent was the agent of principal there is no relation between him and original agent and the original agent is not responsible to principal for the acts of the sub-agent; but if he was the agent of original agent, there is legal relation between them.

Possession, by title of ownership, shall be taken as proof of ownership (Article 35 of Civil Code); If someone claims ownership versus a possessor, he has to prove it and illegal possession of the possessor (Zil yad). This situation is referred to as Amarah-e-Yad. If it is proved that the claimant was formerly the owner of the property ,by the continuity of it( Istishab of ownership), a conflict arises between Istishab and Amarah and according to the opinion of Islamic jurists, Amarah precedes Istishab, unless the ownership of the claimant has been proved with admission of the possessor. In this case, Istishab precedes Amarah (Article 37 of the Civil Code). This issue has wondered some of the jurists who believe that the proof of the former ownership of the claimant, with any reason, invalids the Amarah; On the other hand, some believe that there is no conflict between current ownership of possessor and former ownership of the claimant and in any case, Amarah precedes Istishab, and proves the ownership of possessor. This article tries to examine the issue from a jurisprudential (Fiqhi) point of view and analyze the Article 37 of Civil Code.

What happens if more than one person is blamed for causing an injury? It is clear that the liability must be divided between them, but the problem is the criterion of apportionment. Should the liability be apportioned equally or differently? If the latter is true, how the share of anyone is determined? In foreign legal systems, there are different ideas in this regard, and finally, it is up to the court to apportion the damages fairly. Islamic law has accepted the theory of equality of liability. After the approval of the Islamic Penal Code, this view entered into the law of Iran, but the jurisprudence with the justification that the theory of equality is based on the assumption of the equal effect of each of the tortfeasors accepted the possibility of proving otherwise and accordingly, each share was determined based on the extent of its impact on the occurrence of loss. The Islamic Penal Code in 1992, under the influence of existing doctrine and jurisprudence, accepted this view in Articles 526 and 527, while in Articles 453, 528, and 533, the theory of equality of responsibility has been followed. In this article, we have tried to explain the foundation of the theory of equality in Fiqh and its results in interpreting the Islamic Penal Code.

There are different ideas about the rules of selling mortgaged property in Iranian Law and Islamic Law (Fiqh). This caused a wide divergence of opinion in the courts. The basis of this diversity is related to the question that whether this transaction should be considered in the category of possessions against the mortgagee’s rights or not? Whereas most of the Islamic jurists conceive such transaction to be invalid (Adam-al-Nofouz), contemporary jurists believe in the validity of it and jurisprudence has tended to this opinion.Examining various articles of the Iranian Civil Code shows that from the view of it, this transaction should be regarded as invalid which is confirmed with the permission of the mortgagee or redemption of mortgage.The present study attempts to explain logical basis of this view in Iranian and Islamic Law (Fiqh), resolve existing doubts and determine the rules and effects of this transaction. In this regard, with a comparative study, the rules of this transaction in French Law will be examined as well.

Contractual liability in the strict sense of the word is the obligation to compensate for damages arised from breach of contract. The main question is about the nature and basis of this obligation. Shall we consider it as a form of compliance of the contract; meaning that promisor has to give the equivalent of the contract to aggrieved party and perform the contract indirectly; or shall it be considered a separate nature of the contract and as a compensation which is imposed by the law? In the past, western legal systems; specially in France, contended that the claim to compensate for damages is an alternative to the contractual obligation and presumed specific performance. But this view changed, so today, contractual liability like non-contractual liability is considered as a compensatory function, and its basis is considered to be in breach of the contractual obligation so it is separated from the main obligation of the contract. This different view leads to different effects; particularly it denies the the distinction between contractual and non-contractual liability and causes the unification of civil liability. This view corresponds to Islamic law rudiments. It seems that in the Iranian legal system- emanating from Islamic Law, both contractual and non-contractual liability have a same nature and subsequently there is no duality in civil liability. In the present study, we have tried to examine this issue in the Islamic and French law. An interpretion of Article 221 of Civil Code concludes our perspective on Iranian law.

In the insurance contract, assuming the fulfillment of the contractual conditions, the insurer is obliged to fulfill his obligation, to compensate the loss. Sometimes, despite the fulfillment of the conditions for claiming contractual rights for the policyholder (realization of contractual risk), based on the fulfillment of a matter that is typically a breach of obligation by the policyholder, the insurer is released from its obligation, which is interpreted as "Forfeiture ". The basis of this fall of the right can be according to the law or contractual condition. In foreign legal systems, the validity of the clause in the insurance contract is limited to specific cases and subject to compliance with conditions. In French law, the condition of "Forfeiture" is subject to limitations, both in terms of nature and form. In terms of form, the clause must be binding, in the sense that the insured must know precisely which of his obligations the forfeiture of the right is. It should also be written in clear and bold terms. From a substantive point of view, according to the law of December 31, 1989, it is effective only when the insurer proves that the loss occurred as a result of the policyholder's non-obligation. In the law of England, due to the seriousness of the guarantee of the implementation of the breach of warranty in the law of 1906, fundamental reforms were made in the insurance law of 2015 and in articles 10 and 11 of the insurance law, it is stipulated that the breach of the warranty does not exempt the insurer from the obligation to compensate the damage, but with the breach of the warranty, the insurer's obligation to will be suspended. In addition, the insurer cannot refuse to compensate the damage by using the breach of warranty even if it is not related to the damage. In Iranian law, in Article 15 of the Insurance Law, this ruling is provided for the obligation to inform about the occurrence of an accident and to try to deal with the damage, but regarding whether the parties to the insurance contract can agree on this in other cases as well, or it should be considered limited to legally authorized cases, there is no text. In addition, the law is silent about the legal nature of this condition. The importance of examining the "condition of Forfeiture" is that such a condition is widely used by insurers in insurance contracts. While the provisions of this condition, the collapse of the most important effect of the insurance contract (one of its two cases); It means "Insurer's obligation to compensate". In addition, the explanation of the legal nature of this performance guarantee can help to explain the various aspects of this institution and the conditions of its impact on the legal relationship of the parties and adjust the superior position of the insurer in concluding the contract according to the supplementary nature of the insurance contract. The current research is an applied research and the method of collecting information is a library. The author's research method is descriptive, analytical and critical. The fundamental question is what is the legal nature of the " Forfeiture" in insurance contracts; furthermore, what are its validity conditions? It seems that the nature of this clause is "Falling Obligation" and can be analyzed in the form of causes of falling of obligations and it cannot be considered as a "Exclusion Clause" and the validity of this clause must be confirmed in the insurance contract based on the principle of contractual freedom. This research work is considered fundamental and at the same time practical, which tries to be discussed with an analytical approach and with descriptive, qualitative aspects and using library data to the extent necessary to conduct the research. In order to achieve this, first, according to the background, the required sources were prepared from Persian, English and French legal books and articles, and then according to their content and the analysis of the contents, the desired results, including the explanation of the legal nature of Clause Forfeiture in The insurance contract and its credit terms and conditions were obtained.

In commutative contracts, the actual exchange of two considerations is basic to contract and compulsory delivery of subject matter of contract and compulsory performance of obligations arising therefrom is also among the rules of the synallagmatic contracts for mutual exchange. Also, any negligence in the performance of the contractual obligation or the supervening impossibility of performance subsequent to the formation affects the status of the contract. In the case where an external factor renders the performance of one of two reciprocal obligations impossible, if such impossibility is permanent, the contract becomes dissolved and if it is of a temporary nature, it shall give the obligee the right to rescind the contract known as the option of the impossibility of delivery. However, in case the obligee does not wish to terminate the contract the question is that is he entitled to withhold performance of his own obligation and to bring the performance of the contract into suspension? Iranian Civil Code has not expressly mentioned this rule, but such a right can be deduced from a number of statutes as well as the general principles of commutative contracts. Furthermore, in the course of suspension, the obligee is not liable for the non-performance or delay in performance of the obligation. Suspension of the performance of the contract is similar to right of lien in some respects. Our aim in this article is to review the right of suspension of the contract and then to substantiate the existence of this right under Iranian Law.
 

 Clarifying the effect of registration on Estate ownership based on current necessities and legal capacities, in addition to a theoretical approach, has special importance in guiding policymakers and preparing legal and executive mechanisms. In this study, taking into account the role of estate registration and the importance of its effect in realizing or proving ownership, especially from the perspective of providing the components of public ethics and judicial health, the approach of the two legal systems of Iran and England was investigated.

 The current research has been carried out by descriptive-analytical method and using library (documentary) resources.

Ethical Considerations: 

In writing this article, the principles of ethics in research, especially trustworthiness in citing texts and preserving the originality of the article, have been considered.

 Estates registration can provide the goals of registration laws in the fields of security, justice and judicial health if it has a creative effect (ascertaining) in the realization of ownership. This is clearly foreseen in English law and can be deduced from the registration regulations in Iranian law.

 In English law, while using the effective and transparent method of electronic registration along with the adoption of a hybrid creation system, property registration and the inclusion of names of persons will lead to the transfer of ownership rights of estate and the possibility of legal possessions in the property. In Iranian law, various interpretations of registration regulations and reference to other laws have caused various theories and approaches, but considering the aims of the registration legislator and the necessities of property registration in the fields of public ethics and judicial health, there should be a causing effect for registration and registration procedures of estates.

Sleep affects physical and mental health, and major changes occur in the pattern and structure of sleep with increasing age. Therefore, the aim of this study was to compare psychological well-being, cognitive impairment, physical activity and coping styles in the elderly with and without sleep disorders.

This causal comparative study was performed on 40 elderly men and women in Zanjan in 2020. Data were collected using Ryff Psychological Welfare Questionnaire, Endler and Parker Coping Styles Scale, CHAMPS Physical Activity Questionnaire, Cognitive Impairment Scale and Petersburg Sleep Quality Questionnaire. Data were analyzed using SPSS through multivariate analysis of variance.

The results showed that there was a significant difference between the elderly with and without sleep disorders in cognitive impairment components including inadvertent mistakes (F=11.403), memory (F=12.596) and distraction (F=6.335) problems, problem-oriented (F=7.055), emotion-oriented (F=12.788) and avoidant (F=5.272) coping styles, high physical activity variables (F=9.929) and moderate physical activity (F=4.433) (P˂0.05). Moreover, the results indicated that 44% of the variance related to the difference between the two groups was due to dependent variables.

Due to cognitive impairments and negative coping styles of the elderly with sleep disorders, it is recommended that some interventions should be established in nursing homes and psychological service centers to increase the elderly’s cognitive ability and teach coping skills to them.

Subrogation is an institution in western legal systems which has its roots in Roman Law. It has been conceived as a legal fiction, justifying a few of the rules in the law of obligations. One important embodiment of this theory is the transmission of obligations and the survival of the contract after the death of one of the parties to it. The Iranian Civil Code uses the term denoting this concept (qa’im-maqami) in articles 219 and 231 of it, without defining it. The Iranian legal doctrine, however, influenced by the French doctrine, has adopted subrogation as an Iranian law institution and suggested a few definitions. The same term has also been used in fiqh to signify the relation between the devisor and the heirs. A closer study of the texts, however, proves that the meaning of this term in fiqh is different from that in western legal systems. Even though many of the rules of western systems, justified by invoking subrogation, have counterparts in Islamic law, their bases in the latter is not subrogation. It is contended here, therefore, that the inheritance subrogation in the sense embraced by western legal systems, does not exist in the Islamic law.

Supervision on State-owned companies, to some extent, brings about health in the function of them. Different Supervising referrals are based in different judicial systems for supervising these companies. France is a country in which many structures for giving State-owned companies a proper supervision has been foreseen. Conducting an analogical study in Iranian & French Law can result in profound effects on our law system. The main question of this study is how the structure of supervision bodies works. To answer to the question, There are in total two chief structures to supervise State-owned companies; internal supervision, and external one on which each of them given to special aspects of the companies’ affairs.  In this article, by applying a Descriptive-analogical method, an assessment of supervision bodies of State-owned companies in Iranian & French Law carried out, and eventually concluded that in French law the most important factor that helped to The quality of supervision on State-owned companies mainly regards the concept of transparency and constant Reporting of supervision results of the companies to the public.

We may encounter circumstances in which we cannot deduce the Islam ruling (Hukm sharii) from the four sources (primary sources-daleel Sharii) .In this circumstances there is many practice principles(Usul Amaliyyah-Secondary Sources) from which we can interpret Islamic ruling. So Usul Amaliyyah are used to deduce Islamic ruling, not subjects. But sometimes, in order to prove the subject of the ruling, it is also referred to the practice principles and they called subjective principles, such as subjective presumption (Istishab mowzoei). On the assumption of subject, the actual existence of it cannot be proved; since this issue is not in the authority of the legislator (sharea’), rather, with regard to deduce Islamic ruling, that subject is supposed to be existing, here it is called Apparent law (Hukm-e Zaheri). Now, if the subject has the ordinary and rational requisites, and an Islamic ruling is established about it, with application of principle it is not possible to prove the requisites and the Islamic ruling that has been established. The proof of the rational and ordinary requisites depends on the actual existence of the subject (Mustashab). This subject is proposed in Usul Al-Fiqh under the Asl Mosbet. It is said that practice principles, do not prove their ordinary and rational requisites of their issue and they are not proving. We criticize and analyze different opinions about it and express the basics of its lack of authority.

In western Law, especially in French, subrogation has been established for justifying the survival of debt and contract after the death of one of the parties. In other word, when one of the parties to a contract dies, the heir becomes successor of the decedent in both properties and debt. So, in addition to the decedent’s property, his debt is transferred to the heir. Although in Iranian Law the term successor has been used in Civil Law, but there is no a text about its concept and sentences. Legal doctrine influenced by French Civil Law, has accepted it and has analyzed its sentences on this base. But it seems that the principles of this term do not exist in Iranian and Islamic Legal system as it is in the Western Law. This article attempts to analyze the concept and principles of Subrogation in Iranian and French Law through a comparative study.

The necessary condition for filing a dispossession lawsuit is the property plaintiff at the time of filing the lawsuit. Assuming that the plaintiff has an instrument under seal, his lawsuit against the unauthorized possessor of the property is accepted, but if he does not have an instrument under seal, there is a great deal of disagreement in the jurisprudence as to whether he can file a foreclosure lawsuit. The prevailing theory is that such a person should accept an dispossession lawsuit. But there is also a difference of opinion as to how to prove ownership in terms of procedure law. While some argue that the plaintiff must first prove his ownership by filing a claim for proof of ownership and then a claim for dispossession. Others believe that he can file a claim for proof of ownership and dispossession in a lawsuit, and the court They take care of both. Even some, who are, of course, in the minority, believe that mere litigation is sufficient, and proof of ownership is a condition of the dispossession lawsuit and it is necessary, and the court must consider it without explicit request of the plaintiff. To issue, this difference of procedure is due to the theoretical difference that has existed for years in the doctrine regarding the meaning of Articles 22, 46, 47 and 48 of the Registration law and has also found its way into the judicial procedure. The legislature, apparently skeptical of an explicit law, had for years considered it expedient to remain silent and leave the courts to their own devices. Ownership of registered property does not require an instrument under seal.

Discussing the extent to which the contract clause of adherence to the contract is one of the important issues to be raised in relation to the terms of the contract. Some legal texts such as Article 246 of the Civil Code of Iran have been deduced from the viewpoint of the Iranian legislator that it is a condition for the conclusion and dissolution of the contract. If a contract is canceled due to a legal or contractual reason, the contract clause will be null. It is also known in Islamic jurisprudence that the clause follows the contract. The fundamental question is that is it possible that a contract clause remains after termination of the contract? It is obvious that there are several cases that, despite the dissolution of the contract, contract clauses have continued to be legal and remain affective and valid. These terms are considered as survival clauses. In French law these clause are known as "Les obligations survivant au contrat". the new French Civil Code, Article 1230, has ruled out some of the terms of the contract from this general rule and stipulated that these clauses would remain in force upon dissolution of the contract. The basis for the survival of some terms after the dissolution of the contract, the examples of them in Iranian law with a comparative study in Islamic jurisprudence and French law forms the subject of this article. For this purpose, this article is prepared in a descriptive analytical method. As a conclusion of this article we should note that there are two types of contract clause: dependent clauses and Survival clauses. Dependent clauses are those referring to the considerations of the contract. For example the clauses which are related to the quantity or quality of the considerations are dependent clauses. Such clauses can not survive after dissolution of the contract. In the other hand, the survival clause is a clause that can remain after dissolution of contract. For example the arbitration clauses and penalty clauses are survival clauses.

The implementation of the practical principles of inference of religious ruling is in cases where there is no religious reason. The authority of the principles is often a Shari’a ruling, and its provisions are proved by providing the rules, although sometimes the principle applies to the issue of Shaia’s ruling. In this case, the real existence of the subject is not proved by the flow of the principles because existence and non-existence of the subject are revolutionary affairs, and they cannot be falsified by the Shari’a ruling. The principle has been reassumed in order to regulate the effects of the Shari’a on the subject, and its Shari’a ruling is established. If that subject has rational and ordinary supplies and Shari’a ruling is ordered on them, Shari’a ruling will not be proved through the main course of those supplies, since the rational and ordinary means which are real and formative follow the real existence, not the devotional and hypothetical existence. This issue is investigated as a positive principle. Outstanding people believe that the principle of affirmation of ordinary and rational devices is not the subject, and the religious ruling is not appropriate for it. This argument has been of great importance in inferencing the sentences. In this article, an attempt has been made to explain the history and principles of its lack of authority while explaining this principled rule.

Contract of Trustworthiness (Bay‘ al-Wafa’) also known as Permitted Contract (Bay‘ al- Ja’iz), Contract of Trust (Bay‘ al-Amanah) and Contract of Responsibility (Bay‘ al-‘Uhdah), is a concept which emerged in Sunni jurisprudence in the late fifth century (AH) and there are lots of controversy in explaining its nature and rules. In Imami Jurisprudence, it has been referred to under titles such as Contract of Condition (Bay‘ al-Shart) and Optional Contract (Bay‘ al-Khiyar). Bay‘ al-Wafa’ differs from Bay‘ al-Shart in terms of jurisprudential background and some decrees. However, there are many similarities between them, because both are created on the necessity and are known as a sale contract and both have the property effects. There are also many controversies about the nature of this kind of contract and its effects in Sunni Jurisprudence. Following the Imami Jurisprudence, Bay‘ al-Shart has been included in the Iranian Civil Code, in articles 458-462, but changes have been made to its effects and the decrees related to it over time. On the other hand, the legislator in Afghanistan, following the Hanafi Jurisprudence, has included Bay‘ al-Wafa’ in Civil Code of this country. This paper attempts to study this legal subject in different Muslim schools of thought, determining the basis of legislation and the economic usage, and then it tries to analyze its nature, effects and decrees related to it, and express the evolutions which have been made in law in this regard.