دکتر محمدعادل ضیایی

Cash pre-purchase of products of production units at a certain price, which is used to secure part of the working capital of production units. According to the definitions of the jurists, the sale of an object described in dhamma and with the word salam or salaf; or the purchase of long-term assets is considered as cash.

This research is of a theoretical type, and the research method is descriptive and analytical, and the method of collecting information is library-based, and it was done by referring to documents, books, and articles.
Ethical Considerations: In this article, the originality of the texts, honesty and trustworthiness are observed.

The current bank contracts related to receiving advance loans from Iranian banks have conditions that according to the legal definitions of peace sale and its validity conditions; We find that the existing differences between banking contracts in Iranian banks and the fiqh laws of sale of peace, and the difference in the terms of granting advance loans by banks, and the conditions of price and goods in the validity of sale of goods, cause the corruption of salem contracts between banks and customers. .

In the repayment of a bank advance loan, Muslim Fiyh (goods) which is traded in immovable form, is changed like a cash sale for cash plus a predetermined interest.

Deviating from the apparent meaning of the word and turning to other meanings other than the apparent meaning that the word gives possible meanings is called interpretation. Now the question is whether it is permissible to interpret the texts of the Qur'an and the Sunnah, and if so, what conditions are subject to its permissibility? It seems that despite the theoretical differences of Muslim scholars regarding the permissibility of interpreting Sharia texts, in practice, they all accepted it and interpreted the texts; although there are differences of opinion regarding the amount of use, the conditions of correctness and the reasons that can be cited in the interpretation. For the accuracy of the interpretation, in addition to the competence of the interpreter, the word must be able to be interpreted, the possible meaning of the author must be included in it, and there must be a reason for this interpretation. Since interpretation must be documented for a reason, jurists have disagreed on what matters can be documented as interpretation. Examining the views shows that they agree on the permissibility of interpretation based on the text, consensus and rational argument, but they differ on the permissibility of interpretation based on analogy, expediency, custom and other evidence. One of these controversial arguments is the purposes of Sharia, which refers to the goals that the Sharia had in mind when legislating Sharia rules. Even though most of the jurists of different denominations have not accepted the interpretation based on the purposes of the Sharia due to the fact that the mujtahid does not include the purposes of the Sharia, the ambiguity and differences in the purposes, and the opening of the gate of corrupt interpretations, the proponents of the theory of the purposes have accepted the permissibility of this under certain conditions. Examining the arguments of both sides leads us to the conclusion that if the Sharia intentions are correctly extracted and the conditions of correctness of interpretation are observed, the texts can be interpreted based on the Sharia intentions. Especially when this interpretation leads to preserving the essentials of Khums, i.e. soul, religion, intellect, generation and property. This interpretation can be done in the form of allocating and restricting texts, adolescent due to the expressions of command and prohibition and the like.

One of the most important challenges for Islamic financial engineers is to pay attention to the differences between religions in Islamic countries, including Iran, and plan to discover the differences, resolve legal ambiguities, and finally lay the groundwork for increasing public participation in various financing projects. The importance of the present research is to resolve the legal ambiguities and doubts in order to increase participation in the financing of Mudarabah bonds. The lack of financial research in Iranian Sunni jurisprudence in connection with the issue of Mudarabah bonds, the population and the high economic and development potentials of Iranian Sunnis, as well as the potential ability to participate in various financing projects by this special segment of the Iranian society, from It is one of the necessities of conducting the present research. . Therefore, in this research, with the aim of reducing the jurisprudential doubts of the Iranian Sunnis, from the two perspectives of Shafi'i and Imami jurisprudence, the Mudarabah papers were examined and analyzed jurisprudently, in order to clarify and resolve its jurisprudential ambiguities, in fact, the present study seeks to answer this question. What are the similarities, differences and the percentage of jurisprudence and difference in Mudarabah papers based on the standards of Imamiyyah and Shafiiyyah jurisprudence. The main approach in this research is a comparative approach. In order to analyze and issue jurisprudence in Imami jurisprudence, the document analysis method (documents and approvals of the Jurisprudence Committee of the Stock Exchange Organization) has been used, and in connection with Sunni jurisprudence (Shafi'i jurisprudence), in-depth interview and focus group methods have been used, a statistical sample It includes 9 experts of Shafi'i jurisprudence. The results of the research show that the similarities and common points of jurisprudence are very high and the percentage of jurisprudence and jurisprudence in the two jurisprudence systems of Imamiyyah and Shafiiyya in relation to Mudarabah papers is at a very high level (100%), which is important. It can be the basis for increasing the participation of Iranian Sunnis in projects related to Mudarabah bonds and other Islamic securities issued in Iran.

Although, Islamic jurisprudence scholars agree on the permissibility of divorce in Islam, they adopt different views on what type of Islamic ruling it should be assigned. A close analysis of the scholars’ stances reveals that their lack of consensus on this issue is mostly based on the popular hadith of “ابغض الحلال…” and other related hadiths. These hadiths mostly have issues with their chain of narrators. Moreover, they are paradoxical in nature due to considering divorce both ḥalāl and at the same time a much-hated act. Such a paradox defies logic. Still another point that defies logic and wisdom is to consider the same type of Islamic ruling for a divorce based on whims and a divorce which is well-justified in Islam. Needless to say that the first one lacks any Islamic justification. The present study, which adopts a descriptive-analytical approach, first scrutinizes the narrations related to divorce from both content and their chain of narrators’ points of view, and then concludes that in different situations, different types of Islamic rulings should be considered for divorce and it is too simplistic to consider it as makrũḥ or mubāḥ in all cases without taking their situational conditions into account.

One of the most important prerequisites for public participation in investment and financing projects (in this research, endowment bonds), is to provide information needs and pay attention to different jurisprudential views in the country. Therefore, in this research, the mentioned papers are examined based on the standards of Shafi'i and Imami jurisprudence in order to clarify and resolve its legal ambiguities and doubts.

The main approach in this research is a comparative approach. In order to analyze and issue jurisprudence in Imami jurisprudence, the method of document analysis (documents and approvals of the Jurisprudence Committee of the Stock Exchange Organization) has been used, and in connection with Sunni jurisprudence (Shafi'i jurisprudence), in-depth interview and focus group methods have been used, a statistical sample The aforementioned include 8 experts of Shafi'i jurisprudence.

The findings of the research showed that the commonality of views in the two jurisprudence institutions is very high, and this can be a sign of increasing the participation of Sunnis in endowment bonds and other Islamic securities issued in Iran.

Originality / Value: 

Considering that the results of the research resolved the jurisprudential ambiguities related to the endowment documents, it is a very positive step for the development of this tool, and surely, with the wide dissemination of the above results, we will witness more and more participation of Sunnis in Iran in similar projects at the level We will be the country and eventually a very good synergy will happen in this area.

The sacred tradition of marriage from the beginning of human history has always been more or less influenced by environmental, social, and religious conditions. One of the most basic conditions of marriage, from the Islamic point of view, is the permission of the guardian of the girl. However, in case of absence of a close guardian and the transfer of guardianship to a distant guardian or the judge or the girl herself, jurists of Islamic denominations have different views. If the guardian's absence is interrupted i.e. it is impossible or difficult to reach him, three solutions have been proposed: transferring the guardianship to the distant guardian, transferring the guardianship to the judge, and leaving the guardianship to a mature and wise girl. If the absence is uninterrupted (access to the guardian is possible), the following four solutions have been suggested: transferring the guardianship to the distant guardian, transferring the guardianship to the judge, leaving the guardianship to the girl and not transferring the guardianship, and waiting for the close guardian to return. In case of interrupted absence of the guardian, it seems that the solution of transferring the guardianship to the distant guardian is more in line with narrative and rational arguments, and if the absence is uninterrupted, it is better to wait for the guardian to return and take charge of the marriage, especially since in the present age it is easy to return to such a situation with ease in traffic.

Discussion about liability based on fault and the effect of fault in liability is an important topic in today’s law. However, given that the laws have not explicitly required the establishment of fault in causation, there are different views on what role to assign to the fault in tort judgments. Although damage, liability, causation and fault are favorite topics in fiqh (Islamic law) and extensive discussions are devoted to them, they do not convey an explicit position about the place of causality and they have not addressed the “what we are in”  theoretically and have not given an independent topic to this issue. Thus both in fiqh and in Iranian law, there are serious uncertainties around the essential question whether any causality relation is enough for necessity of compensation or there should be an element of fault so that a ruling for compensation is issued. And if the latter view is accepted, where is the domain of fault? Despite what is sometimes said in fiqh, detailed reviews indicate that there is consensus among jurists that fault has no role in liability caused by direct loss (itlaf), and inflicting loss and causality are enough for liability. Therefore, it can be said that the domain of effect of fault in civil liability is limited to the indirect loss (tasbib). Islamic jurists, however, have conflicting views over indirect loss. Some have not required fault for liability in this category while majority of them, based on rules such as “the culprit is only liable for what he intended” and “there is no warranty in what is not considered harm by custom and even if it entails what is considered harm”, believe that in the event of indirect loss, the loss cannot be attributed to the agent and hence the liability doesn’t apply to him or her unless fault (even if in the objective sense) can be established. This view on indirect loss can be clearly understood  from the writings of jurists such as Gazali, Allama Helli, and Al-Karraki. Thus whenever it is impossible to predict the loss  to be resulted from an act so that rarely does that act lead to loss, that action is not subject to liability even if it leads to loss in the particular case. They believe that there is no evidence in the divine texts upholding that causation alone can bring about liability. Liability is, rather, but that accountability in causation is based on the coincidence of causality, the reasonable attributability of loss to the act, and about the establishment of the agent’s fault. In the Iranian law too due to lack of specification, lawyers have followed the same paths and there are two viewpoints among them. Some believe that in neither of direct and indirect losses, does the element of fault have any role and the realization of the three prongs of harmful action, loss and causation is enough for the compensation. This is while the majority of lawyers believe that the the motion for liability will be granted only when the fault exists in the committed act. In their opinion, the role and effect of fault in liability can be inferred not only from the articles 333 and 335 of the Civil Liability Act enumerating some variations of the indirect loss but from the articles 506 and 537 of the Islamic Penal Code. Hassan Emami supports this theory and believes that whoever damages other peopl’s properties will be liable only when he or she has either neglected the predictable results of his or her actions or has committed the act having thoseresults in mind. Given what was mentioned above, this article suggest that applying only one of the mentioned theories to the vast array of examples some of which are quite complicated and to diverse social and legal relations among humans is not reasonable and that a sound, principled approach would be to consult common usage and to use it as a criterion for proving or disproving the role of fault in liability caused by indirect loss.This study is carried out in an analytical-descriptive library method referencing original sources of fiqh and credible law books, and evaluates different viewpoints and their reasoning,  examining the soundest among them more thoroughly.

Imam Mohammad Ghazali, who is one of the prominent figures of the Shafi‘i school, despite maintaining his adherence to the principles of the Shafi‘i School, disagrees with the head of his school on some fundamental issues. The most important of these are as follows: While Imam Shafi‘i considers the opposite concept as proof, Ghazali believes that it is not a proof and in fact, he believes that it does not make sense. On the subject of abrogation, Ghazali, like most Usulis, believes that it is possible for Qur’an to be abrogated by frequent Sunnah and Sunnah can be abrogated by the Qur'an as well, but Imam Shafi‘i believes that the Qur’an is abrogated by the Qur'an and Sunnah by the Sunnah. Another difference is in the proof of the words of the Companions, thus, according to the old saying of Imam Shafi‘i, the word of the Companions is a proof. Ghazali, on the other hand, does not consider the words of the Companions as a proof. Evaluating their ideas and arguments shows that in the above subjects, the preferred opinion is to consider the opposite concept as proof, the permission of abrogation of the Qur’an with Sunnah and the Sunnah with Qur'an, and the non-proof of the words of the Companions. There are jurisprudential works for each of these fundamental disagreements, which reflected in the views of Imam Shafi‘i and Imam Ghazali.

The combination is that by choosing the opinions of different schools on an issue, the individual acts in such a way that his act is not correct according to the opinion of any of the schools. The Islamic jurists have been divided into three groups regarding the verdict of combination; a group, citing consensus, Sadd Al-Zaraie (blocking the means) and the absence of a record in the early days of Islam, has absolutely ruled that it is not permissible; On the other hand, another group believe that it is absolutely permissible. In order to prove the validity of their opinion, this group refer to verses and narrations indicating the negation of constriction and duty, the act of the companions, the permission of imitation of the Mujtahid by the ordinary people and some jurisprudential rules. The third group have considered combination permissible subject to conditions and criteria such as not opposing the consensus, not leading to Tatabbo Al-Rokhas (searching the religious permissions), not opposing the rules of Sharia and the goals of the divine lawgiver. Comparing the above three viewpoints and their arguments, it can be said that the third one seems to be preferable. Because, firstly, by avoiding the absolute prohibition of combination, it does not provide the causes of hardship and constriction for the duty-bounds and is also in harmony with the spirit of easiness and leniency of the religion and on the other hand, by setting conditions and criteria, it has prevented the problems that exist in the theory of absolute permissibility of combination.

Contradictory possession means the non-fulfillment of the condition stated in the contract. According to the terms of the contract, the violation of the condition can be examined in three cases of violation of the condition of the adjective, verb and result. Considering that the parties to the contract have considered a specific purpose and motivation for inserting the condition in the contract, without a doubt their relationship is effective and creates legal conditions for constitutionalism. The jurists disagree on the freedom of contract and on freedom of condition, along with contracts, but in this case they agree that whenever a contract is concluded with full pillars and conditions, it will have binding power. This study, by descriptively examining the views of Imami and Sunni jurists and analyzing its reasons, has considered the legal act (contract or iqa ') that has been done against the condition to be correct, but the constitutional case can take two steps against violating the condition: First, it can be contractual. To terminate the condition in which the condition is stated and, secondly, to request compensation in case of conditional violation against the damage caused to him. Of course, in some cases, such as marriage, etc., this general rule must be deviated, as in some cases, the legislature has deviated

The "Al-Kefāyah fi al-Fiqh" is a Persian text on Shāfi'i fiqh (jurisprudence), written by Hoseyn b. Mas'ud Farra’ Baghawi (d. 516 AH), a prominent jurist and commentator of the sixth century AH. In organizing the book into chapters and arranging its various topics, Baghavi has been inspired by similar Arabic texts. Apart from its interesting scholarly aspects, this work is also noteworthy for its inclusion of thousands of rare Persian simple as well as compound words. The author's inclination to use rare and old words and making use of beautiful Persian equivalents for jurisprudential terms, the use of charming and pleasant collocations, lucidity of expression, clarity of words and phrases, the authenticity and solidity of contents, are among the notable features of this book. Thanks to Baghavi's high academic standing and his jurisprudential precision, and due to the old prose style of the book, it has a special place among Persian speakers, especially Shāfi'is. This article is intended to study the stylistic features of the Al-Kifāyah from three viewpoints: linguistic, literary, and content wise.

In narratives quoted by holy prophet (pbuh) and the Imams (pbut), divorce is considered as a hateful subject and those who divorce their wives with no sufficient reasons are seriously criticized. Several narratives in Shiite or Sunnite texts and many other references suggest Imam Hassan (pbuh) as a Mitlaq (The Divorcer) who had gotten married with several women but divorced them consequently without any specific reasons. Such narratives are in conflict not only with the narratives which call him the chief of the youth of Eden, but also with his highly religious rank and adorable piety. A close investigation through Sunni narratives indicates that being Mitlaq has never been mentioned in any of the six main Sunni books and there are only two narratives in this regard in Musnnaf Ibn Abi Shaybah, the narrator of one of which is accused of negligence and hallucination. On the other hand, though there seems to be a rather large number of such narratives among Shia narratives, they can’t be counted on due to their anonymous and weak narrators or the undependability of the documents. Not only are the accounts narrated in history books written with a large temporal distance from the life time of Imam Hassan (pbuh), but also due to discontinuity of the document, narrator’s weakness and other such deficiencies none of them can be relied on. Therefore, it can be concluded that with regard to the accurate narratives regarding commitment of Imam Hassan (pbuh) to religious commands and his avoidance of illegitimacy or even Makruhat on the one hand, and the inaccuracy of the narratives regarding his being Mitlaq on the other, attributing being Mitlaq to Imam Hassan (pbuh) contradicts the reality and, though noted, has no scientific basis.

The widespread changes in societies and the diversification of human needs on the
one hand, and the remarkable advances in medical sciences and chemistry, on the other hand, have led to the
use of a large range of people from products whose raw materials have been considered ritually impure in
Islamic jurisprudence, including soaps made including soaps made from pig components.The question now
is whether the changes made to these materials have changed their nature and eliminated their impure?

The present research is based on descriptions and the analysis of the Islamic
jurisprudential propositions and the library method to study the subject under discussion.

In response to this question, the Islamic schools have granted permission to transformation and
therefore permit the use and sale of such soap. On the contrary, others believe that transformation is not
certain or non- transformation is established. So the ritually impure is still left. This group is divided into two
categories, some of which do not allow the use of these types of products, but others, despite the impure of
use of these products, are entitled to use them for the needs of the people and in order to obviate the distress
and constriction. It seems that among the existing narrative, the transformation and, consequently, the use
and sale of products made from pig components, is more powerful than the existing ones.

some of the current jurisconsults of Shia have considered an absolute authentication for it.believe that the narrations stating the forbiddance of giving gifts are weak and cannot be cited; thus, giving gifts to judges is considered solely as giving a gift. On the contrary, most Maliki jurisconsults believe it to be ultimately forbidden, so that corruption is avoided. Some other such as Abu-Hanifeh his apprentices believed it to be abominated, in their perspective, preventions stated in provisions express abomination, not forbiddance. On the side of such opinions, most leading Shiite jurisconsults, nearly all of the Shafi’i and Hanbali jurisconsults, some of Hanifa and some of Maliki’s jurisconsults have considered conditions and they believe that giving gifts to judges in different conditions have various verdicts. It seems that this opinion is superior, and the measure of conditions include the intention of the gift giver and the intention of the judge, the existence of former relationship between the judge and the gift giver, the existence of the gift giver’s case with the judge, the existence of former history of giving gifts to the judge by the gift giver, and the amount of the gift paid to the judge before and after judgeshiptenure.

One of important subjects in validity of marriage is existence of witness in marriage ceremony. While jurisconsults of all sects believe that existence of witness is necessary for marriage and its successive orders in jurisprudence and legal traces of due from them such as dowry, alimony and … but for validity of marriage there are different ideas. Imamiyah Jurisconsults with refereeing to Holy Book say there is no subject about conditions of witness for marriage in Qur’an, and about some Hadith that speak about validity of marriage without witness, declare that marriage without witness is valid and they believe those Hadith which is about existence of witness have weak sources and at least theses Hadith declare existence of witness is Mostahab. On the contrary Soni jurisconsults (Hanfiyah, Shafe’iyah and Hanabalah) believe that marriage without witness wouldn’t conclude, because those Hadith that declare about necessity of witness in marriage, firstly are Sahih and famous and secondly they haven’t opposition with Qur’an’s verses because verses in this case are silent. Therefore we couldn’t rely on these verses because they don’t speak about this point. Malekiyah also took the middle way. They believe that the aim for existence of witness is because to alert the marriage and base on Prophet Mohammad’s (PUH) declaration secrecy marriage is invalid. So if witnesses hide the marriage contract then marriage is invalid and if there aren’t witnesses in marriage ceremony but after they came out alert they marriage that marriage is correct.

The ownership of usufructs of the corpus or the individuals and also the worth of them has been accepted by all of Muslim jurists, but the worthwhile usufructs are the subject of discrepancy. On the contrary of the majority of the jurists, the first Hanafi jurists believed that the usufruct of individuals is not property, because they believe property should have a non-fungible existence and also havethe capability of seisin and they refer to Holy Quran (which has assigned property for dower) and also the Prophet's tradition (who has ensured the hell for whom get wage for teaching the Holy Quran) as well as some works of the Companions. But on the other hand the majority of jurists believe the usufruct is more specific than property and the usufructs could been evaluate just like the corpus. They refer to the story of the marriage of Moses (pub) and Shoayb's daughter which two parties assigned usufruct as dower in it. Some verses of Quran which call the dower as a wage, some traditions and also the right costume of people which consider the usufruct as property have been referred by them in this matter. The prerequisite of acceptance of the famous opinion of Hanafis is considering the inaccuracy of assigning the teaching of Holy Quran as dower, non-liability of non-gained usufructs by violator, the impossibility of willing the usufruct and the non-performance of the inheritance in usufructs. But the prerequisite of acceptance of the famous opinion of the majority of Sunni jurists is the justifiability of these matters. The recent Hanafi jurists have accepted some of these matters because of the compulsion and policy. It seems the opinion of the majority of Sunni jurists is better than the other because of accomplishment of the contracts with usufructs and the creation of liability as a result of the destruction of them in all costumes as well as considering the corpus as property because of the usufructs and benefit is the main purpose of property.

Bank guarantee letter is a written promise issued by a bank to pay a definite or definable sum of money to the beneficiary in the event that the obligor fails to honor its obligations in accordance with the terms and conditions of the guarantee/agreement/contract. Although bank guarantee letter is a modern mechanism for facilitating and accelerating the economic activities, its jurisprudential and juridical aspects have not been paid enough attention, as it is a modern phenomenon. In this paper, using the documentary and descriptive-analytical method, we have tried to answer the fundamental question of its capability of being adapted to the Islamic jurisprudence and law. There is nearly no disagreement between Muslim jurisprudents about the permissibility of using bank guarantee letters, but there are some disagreements between them in regard to their nature and therefore their conditions and consequences. As regards to the issue of their legitimacy, the jurisprudents have adduced such theories as Daman, Kafalah, the contract of independency of bank guarantee letters, obligation to third party and so on. Given the lack of absolute consistency between the conditions and elements of guarantee letters, on the one hand, and those of such contracts as Wakalah, Daman and Kafalah, on the other hand, it seems that the contract of independency is more likely to be the proper theory.