جستجوی مقالات مرتبط با کلیدواژه « ایجاد » در نشریات گروه « فقه و حقوق »

Indefinite Iqa’ and Unilateral Commitment; the Challenge, Evaluation, ResultAbbas GHASEMI HAMED (Professor of Law, Shahid Beheshti University)Abstract:Iqa' has legal effect through intention of one individual without harming any other party (except as explicitly mentioned in legal cases including Divorce). In Iran's civil code one category of Iqa' is nominated with especial names and has specific legal effects similar to the definite contracts, while the validity of indefinite Iqa' is subject to discussions and controversies in Iran's Law. This disagreement regarding the general validity of unilateral commitment to create legal responsibility refers to disagreement about validity of indefinite Iqa'. Now this question is raised: are there any reasons implying the general validity of indefinite Iqa' otherthan those which are explicitly included in law concerning definite Iqa'? In other words, are there any citations relating to accuracy and validity of indefinite Iqa' and unilateral commitment as well as those relying on Art. No 10 of Civil Code infavour of indefinite contracts? It seems that based on Art.30 of Civil Code, indefinite Iqa' has legal validity in the field of Financial Rights. Accordingly unilateral commitment about Financial Rights as an example of indefinite Iqa' is correct and encompasses legal effects.

Casual relationship is a concept related to cosmic world reflected in legal matters. It seems that in Sunni school of fiqh the origins of the concept firstly used when discussing analogy and inferring legal dogmas from their philosophies. The concepts of philosophy of percept (hokm) and percept have been later compared with natural cause and caused. Sunni jurists have slightly tried to distinguish between them. In Shiite school of fiqh from the beginning jurists did not welcome analogy، juristic preference (istihsan) and consideration of public interest as an independent resource for inferring divine percept. Rather they criticized these institutes. According to Shiite jurists، casual relationship in this sense doesn’t work as a base for inferring divine percepts. However، in late Shiite fiqh in different jurisprudential discussions and particularly in social chapters and parts، the idea of causality has been taken into consideration and has helped found strong basis in different Islamic legal issues including making new contracts and unilateral legal acts. Sometimes، however، the precisions of the issue are ignored and casual relationship in legal issues has been assimilated with causality in cosmic beings. The basic problems are coming from the assimilation of casual relationship in cosmic world with casual relationship in legal matters. The problem، in its turn، comes from ignorance of the fact that although human mind takes the concept of causal relationship from the cosmic world، it doesn’t mean that all characteristics of the concept must be precisely and necessarily applied in legal matters. Considering this fact and paying attention to all different aspects of legislation enable us to find suitable and analogical resolutions for legal problems while avoiding the problem of preponderance without a preponderant which is rationally prohibited.

There are lots of disputes between Shiite Jurists on the subject and sentences of Zalal books. As far as the great Shiite jurists considered each other ideas misleading and unlawful. This thought cause preventing the publication of the others ideas and thoughts. This article is followed up with a detailed explanation of the issue to provide an approach that firstly: understand misleading and its affect according to the juristic bases and thoughts. Secondly: how to deal rational and logical with the affects of misleading books. And thirdly: opening the way for fresh ijtihads and ideas and prevent the introduction of Islam as a religion without reason and incapable of dealing with his opponents thoughts.

There are different views on analyzing the nature of imperatives. Thecreative and expressive views each seek to explain the nature and functionof imperatives relying on certain points. presenting the generally receiveddefinition, the present article studies the major challenges facing thistheory.Surveying different prevailing foundations on this issue and raisingvarious interpretations concerning the creative of expressive nature ofimperatives, the article seeks to raise a hybrid view.