جستجوی مقالات مرتبط با کلیدواژه « خیار غبن » در نشریات گروه « علوم انسانی »

In all human societies, according to the prevailing legal system, criminal or non-criminal measures are proposed as ways to deal with sexual crimes. In Islamic criminal law, unlike the legal systems in Western countries, sexual assault in the context of marital relations between couples, even if it is done without consent, is not considered an example of sexual assault, and the Islamic legislator has not considered such acts as a crime in a marriage. This is the case that in the West, intimacy with the spouse without consent and other examples of sexual violence with a milder degree are predicted and criminalized, and if the sexual act is performed despite the spouse's lack of consent, it is considered sexual assault in marital relations. Employing a descriptive-analytical method, the present study seeks to answer the problem of how the criminal policy of Islam and the West deal with the phenomenon of sexual assault, which is due to the lack of independent research in the study of this issue in a comparative manner. The results indicate that in both the Islamic and Western systems, significant measures have been adopted in relation to criminal prevention, howerver, in the criminal policy of Islam, in the field of non-criminal prevention, both in terms of social prevention measures and the situation regarding the establishment of rules such as the prohibitions on the secluded intimacy of non-mahram men and women and adornment, along with the encouragement to marriage and the prohibition of celibacy and strictness in marriage, maintaining the necessary distance between men and women in public, facilitating the areas of community participation in criminal response in the field of dealing with sexual assault, such as banning perverts or murdering a stranger in bed, or the mandatory sentence in defense of one's honor, in addition to the special rules regarding criminal prevention, such as the difficulty of proof, the prohibition of the spread of prostitution, and the public execution of the punishment for the purpose of setting an example, are among the measures that shows the superiority of the criminal system of Islam over the West.

To protect the contractor who is unaware of the actual price, defects and characteristics of goods or services, the Law- of contracts- recognizes the right of termination of transaction. But a lack of awareness by the contracting party is sometimes due to ignorance or lack of careful inspection. Analyses of legal texts and doctrines indicate that ignorance of the contracting party does not eliminate the possibility of termination which means that the law is rewarding carelessness! However, keeping solidarity of transactions requires that the right of termination not be recognized, in cases where the contracting party does not reasonably examine the actual price, defects and/or characteristics of goods or services before entering into contract. Critically examining the jurisprudential texts and legal approaches of some European countries, the present study sheds light on the duty of the contracting party to investigation prior to entering a contract. Findings revealed that in the legal systems of France and Germany, in cases where the contracting party was able to observe and become aware of the defect, it is not possible to terminate the contract, while in English law the contractor's negligence will not necessarily deprive him/her of the right to claim deception and therefore to avoid the contract.

Options of rescission is considered to be a deliberate liquidation of contracts and The GHABN’s option is also one of these types of Options. Due to the deadline for executing, the options are divided into three categories: Immediate options, options that have a specific deadline, and options that may be delayed. In this category, it is well-known that GHABN’s option is an immediate option. Considering the provision of Article 420 of the Iranian Civil Code on the immediacy of GHABN’s option, there is no doubt that the GHABN’s option will be immediate in law. Nevertheless, in Shiite jurisprudence, however, among the jurists, the Viewpoint of the immediacy of GHABN’s option is popular and some reasons have been given for it, but on the other hand some jurists have also chosen theViewpoin of lack of immediacy of GHABN’s option and have mentioned for that reason. The most important reason for the immediacy of the GHABN’s option is that the principle of FESADE FASKH and ESTESHAB. On the other hand, the most famous reason for the lack of immediacy of GHABN’s option is the principle of ESTESHAB and doubt in the Existence or absence of GHABN’s option

One of the current authorities in necessary contracts, including lease contract, is the authority of loss. The loss that is based on the civil law and the most jurists' viewpoints is the loss that exists during the conclusion of the contract (simultaneous loss), and the loss that occurs after the conclusion of the contract and at the stage of fulfilling the obligations has received less attention from the experts. Since the lease contract is one of the contracts, in which the obligations of the parties are fulfilled over time and since all the obligations are not considered fulfilled only due to landlord withdrawing from the object of the lease, it is important to examine the authority of loss occurring in the lease contract, because it is possible that any change in circumstances may make the parties lose their balance after or at the time the contract has been concluded. Based on arguments such as the no-harm principles and the implicit condition, as well as the intellectuals' viewpoints and finally compulsion, the author of this paper claims that the occurrence of loss during the conclusion of the lease contract like the existence of loss at the time of concluding the contract can cause the right of authority for the party that has lost something in the contract. Such a solution would both help the efficiency of the current trade and economic system and it is in line with the principles accepted by the Iranian legal system.

The Islamic Shari'a is known for its perfection because it has raised religious and secular issues in its prominent laws. Although the Shari'ah is based on belief and worship, this does not mean that they are worldly affairs and that a large part of Islamic jurisprudence constitutes financial transactions. Most people's disagreements over trade are about the highs and lows of the term, especially when it is combined with ignorance or deception, and the jurists interpret it as "groaning". On the one hand, the present article examines the realization of the subject of the Qur'an, including the background, legitimacy, circumstances, instances and cases of fall of the cucumber in the Khamseh religions, and on the other hand, reviews the reasons and forms of its realization in the transaction and its religious status. Paid. Often cucumber is a legitimate cabbage, but cabbage causes a cucumber that has some proof requirements, one of which is gross cabbage. However, not with change or one of the successors in the position of stress. There are some cases of cucumber but cucumbers do not prove to be stable, such as in cases of cucumber fall.

The effect of the cheated awareness of the existence of lesion in the transaction is one the option of lesion efficacy. In general, the role of lesion can be discussed in the form of two questions: The first question is what is the role of the emergence of lesion and the awareness of the cheated in the emergence of it, which in response to this question, two different effects can be attributed to the emergence of lesion; Either to say that the cheated awareness causes the creation of the option from the moment of awareness, or to assume that her awareness is the discoverer of the existence of lesion and the option of lesion coincides with the conclusion of the contract. How to answer the above question will have several practical benefits and effects; including depending on when we know the moment of existence of the option of lesion, It is definitely effective in determining the time of inheritance of the option of lesion and the moment of measuring the imbalance of the contractual exchanges. The second question is whether the emergence of lesion has a role in the legal relations of the parties to the contract, assuming that the emergence of lesion reveals the existence of the option of lesion? The research hypothesis is that, first, the emergence of fraud reflects the fact that the option of fraud has existed since the beginning of the contract. Secondly, the possession of the cheated at corpus of transaction can be a matter of waiving the option of lesion after the appearance and awareness of lesion in the legal relations between the parties. In this study, it is stated that the above hypothesis identified as a popular opinion among both jurists and legists and in practice, the precedent has followed it in a few opinions issued. According to the studies, we will also state that the appearance of the lesion is the only condition for exercising the right and does not interfere in the creation of it according to the code of some countries and also the International Sale of Goods Convention (CISG).

From the view point of jurisprudence and civil code, and according to what has already been inferred, we have seen in the judicial procedure in the event of the deception, the deceived person (usually the plaintiff) is limited to one of two options: "termination" or "maintaining the contract". Thus, a difference in the value of the subject of transaction cannot be demanded if termination of the contract is not plausible for the deceived person. The deceiver, could not, however, prevent the termination of the contract by paying the difference in value of the disputed subject. Economic analysis while preserving justice demands a strategy that must be adopted and to be presented a new plan; formulating a rule that can impede the termination of the transaction by asking for or paying the price difference and to move on in accordance with the principles of Pact Sent Servando and retention of contract, which is rooted in economic custom and the community's desire for stability and security of contracts. This line of argument has been initiated in the judgment of the Court of Appeal of Markazi Province, where the court heard the claims of the price difference from deceived person (judgment number 9609978617000383, 22 November 2016). This is a wise view that seems to be against the established principles of Iranian law, but the economic and fair analysis of the basis of the judgment and some jurisprudence and legal trends confirms that. The innovative effort of the Court of Appeal of Markazi Province has not yet been reported in judicial procedure. Judicial procedure is even more important in the law-based legal systems, because in the face of economic developments and customary precedence, new ways are found that lead to better and more meaningful compensations, namely the maintenance of contract and the economic equilibrium of both parties. The question arises as to why the deceived person should control the termination of the contract and acquire the economic value of the subject of the date of the contract at deceiver expense? We know that the value of property in the majority of cases increases over time. In this case, if the deceived person is not able to compensate the difference between the actual price and the contract price, he will actually be losing and the Pacta Sunt Servando is also distorted. From a legal point of view and with respect to proper economic considerations, the contract should remain and prevent the revocation of documents, because compensation of the deceived person is a solution that results in more efficiency. The result that the deceiver must adhere to that. It is noted that lawyers are used to traditional systems and principles, especially procedural laws in the current century with more than a thousand years history (in jurisprudence) regarding deception and so, change is not always welcomed. In particular, the fundamentals of the right to terminate are not so much strictly linked with economic developments, whilst the courts have a little information about these developments. In this case, it is difficult to change and re-design the basic principles. The analysis of some academic lawyers is that the right to revocation of the contract is based on the implicit condition and some based on the rule of Prohibition from harm. It seems that the preference should be given to the recent rule and the provisions of civil code should be justified on this basis, because this is based on economic analysis and, for example, if the base of the deception is for the compensation of the damages, why paying the difference between the price cannot be prevented from dissolving the contract? Some jurists and legal professors answer this question positively but this time, a judicial procedure has also come into force which recognizes the right to receive money in return for payment. In economics, there is a theory of "exchange cost", which includes those unforeseen costs which are imposed on the other party due to the non-compliance of one of its obligations. In other words, the costs of the exchange are those that parties incur in the process of economic exchange to define and guarantee their property rights. It will include the cost of obtaining information about the seller and the buyer and the quality of the goods or the service that is exchanged, the costs of contract and oversight of the opposing party and, most importantly, the costs of defining property rights and ensuring the enforcement of these rights. Such analysis also affects the foundation of deception. In economic developments, instead of insisting on the technical rules of the contract and its dissolution instruments, solutions move toward balance and efficiency. However, when efficiency gains are prioritized over the rule of abuse of the right, one hopes that contracts change the way to balance and better compensate for the weaker (deceived) party and flexible and efficient rules replace those which are technical and non-flexible.

 The scholars’ differences in opinion on religious law fundamentals and their approaches toward the practical principles such as authorization or istishab are among the major and decisive factors in issuing different Fatwas (nonbinding legal opinion on a point of Islamic law (sharia)) in various jurisprudential aspects. This paper has reviewed and analyzed the effects of fundamental differences in authorization of different Fatwas by jurists in some rules on option of lesion and defect based on Imam Khomeini’s views. The paper has proven that the differences in opinion of the scholars in terms of authorization are not merely theoretical and they have led to fundamental differences in their Fatwas in practice as well. For instance, the difference of opinion in sustainability of the option of lesion for the defrauded person in case of paying the balance by the deceiver comes from the difference of opinion in legal presumption of continuity of the status quo in doubtful case. Based on the views of some jurists such as Imam Khomeini, who confirms legal presumption of continuity of the status quo in doubtful case, in this case the principle of option will be valid. Also the difference of opinion in urgency of option of lesion is due to the dispute on priority of the principle of authorization over the principle of bindingness. As in the case of option of defect, despite difference of opinion on the disputes between the transaction parties at the time of the discovery of defect on the object of sale, the guaranty or non-guaranty of the vendor has its roots in the difference on non-existent authorization.

This article critically examines Allamah al-Hilli's theory on the option of deception (Khiyar al-Ghabn) and compares it with contract law under the Iranian Civil Code. The study begins by exploring the concept of Khiyar al-Ghabn in Islamic jurisprudence and its position within the Islamic legal framework. Subsequently, Allamah al-Hilli's views on this matter are analyzed, highlighting his theory as one of the most influential in the context of Khiyar al-Ghabn, which has also been reflected in Iranian law. The article further investigates the differences and similarities between Khiyar al-Ghabn in Islamic jurisprudence and the Iranian Civil Code, analyzing the relevant legal provisions. The influence of Islamic jurisprudence on the Iranian Civil Code, particularly concerning Khiyar al-Ghabn, is also assessed. Finally, Allamah al-Hilli's theory is critiqued from various perspectives, and its impact on Iran's judicial practices is examined. The findings suggest that while Allamah al-Hilli's theory has played a significant role in the development of Iranian law, it requires revision and adaptation to contemporary social and economic conditions.

One of the options (Khiyarat) considered in jurisprudential discussions is the option of loss (Khiyar-e Ghabn). It means that whenever there happens an ownership more than or less than its value and the other party is not aware of it, “Ghabn” has happened and if the loss is gross, the loser party can cancel the deal. Shiite Jurists presented three different basics and several evidences to prove option of loss. Fundamentals consisting of: Satisfaction Default, Violation of Implicit Conditions and the Denial of Damage. From amongst the Four Sunni Schools, only Hanbalis and Malikis believe in option of loss and have paid less attention to its fundamentals and analysis. Hanafis consider option of loss as a kind of deception and deceit. However, these fundamentals have been analyzed and criticized and “The Denial of Damage” view which is proportionate to the requirements of jurisprudence seems more reasonable.

There is no doubt that the right of cancelation of the contract is created for the defrauded person when the deception becomes evident, but sometimes it is seen that the defrauder pay him the difference before the cancelation of the contract. The main question in the present research is that does the fight of the defrauded person disappear by paying of extra price by the defrauder or his right of cancelation remains? The answer of the article 421 of the Civil Code is negative and indicates that the option of the defrauded person remains. Reviewing the issue, the author criticizes the ruling contained in Article 421 and believes that by compensation of the damage by the defrauder the option of the defrauded person will be overthrown. This theory is consistent with the principle of the necessity of contracts and the exceptional nature of the right of option and other legal Articles, including Article 424 of the Commercial Code. It is also implicit in the jurisprudential rules such as “principle of no harm” and “the rule: when the impediment is removed the prohibited will remove”.