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

Raf~ hadith is one of the most important hadiths that is cited in the principles of jurisprudence to prove the principle of Bera'at Shar'ee and has a wide application in jurisprudence. Some contemporary jurists have raised some problems regarding the documentary validity of this hadith and the ability to cite it.                                                                                                                                      In this essay, by using the descriptive and analytical method, while criticizing and reviewing the views, we try to prove the documentary validity of the quotes that contain the phrase "Rofe'a ma la ya'almun", based on different bases in the validity of traditions and documents. In this regard, we have opened paths for the general and specific verification of the narrators and trust in issuing the theme of "Rofe'a Ma La Ya'almun" due to the reliability and multiplicity of narrations

The purpose of the present research is to examine the way of creating a lien on credit documents and goods and to explore the laws confirming the right to repay the claims of the credit opening bank against the applicant. Also, examining the bases and conditions of creating the right to reject shipping documents contrary to credit and refusing to pay the letter of credit and taking appropriate legal action to enforce the rights of the bank opening the credit in case of encountering a fraudulent beneficiary is within the scope of this research.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

The findings of the present research show that The right to refund the letter of credit and the right to deposit on the shipping documents and credit goods in order to guarantee the repayment of the bank's claims are among the most important rights of the bank opening the credit against the applicant. On the other hand, the definitive and irrevocable commitment of the bank to the beneficiary to pay the credit amount is subject to the submission of the terms and conditions of the documents in accordance with the terms of the letter of credit.

Ethical Considerations: 

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

The research results show if the beneficiary sends shipping documents contrary to the terms of the letter of credit, the issuing bank has the right to reject the shipping documents and refuse to pay the letter of credit against the beneficiary.

Sahl ibn Ziyad Razi is a well-known narrator who has been mentioned in the chains of narration of many Hadiths and documents. The majority of early Shiite Rejali sources prior to Imamia have undermined him, while some latter Rejali and Fiqhi sources have defended the trustworthiness of this prolific narrator and described his narrations as authentic and consistent. Ayatollah Khamenei is one of the few scholars who have neither defended the absolute trustworthiness of Sahl ibn Ziyad nor ruled out that all of his Hadiths are invalid. Rather, he has strengthened the theory of the reliability of Sahl's Hadiths in the noble book of al-Kafi. He believes that the numerous statements of the predecessors in weakening Sahl ibn Ziyad make it difficult to defend his absolute trustworthiness, but on the other hand, the high status of Sheikh Koleini in hadith studies and his great interest in transmitting Sahl's Hadiths in a book like al-Kafi, brings about trust in the hadiths of this narrator regarding al-Kafi. This theory has tangible implications in the areas of ijtihad and Fiqh for Ayatollah Khamenei.

One of the most common methods of financing is borrowing from banks and financial institutions, which the guarantee of loan repayment necessity, requires a security right for the lender in the borrower's property. due to the strategic importance of intellectual property rights, and especially inventions in obtaining credit, many countries have recognized its capacity as collateral. In this regard, it is necessary to study this approach in Iranian law, and this requires exploring the substantive issues of the mortgage contract in jurisprudence, ie the need for tangibility and the ability to possess the mortgaged property. thus: how can an invention be considered "tangible" and "possessable" and its mortgage be considered valid? Some authors have tried to place the invention in the category of intangible assets. however, restricting pledging examples in jurisprudence is based on benefits and are prohibited from expanding the scope of these examples. thus the other question is, how can patent rights be secured? In this paper, by descriptive-analytical method, it has been tried to investigate the nature of mortgage rules in terms of jurisprudence as to be mandatory or non mandatory, in order to examine the possibility of concluding a different collateral from the mortgage, and This, in turn, requires an analysis of the rules governing inventions in order to obtain a method for concluding this contract.

Famous later osulies   believe that a tradition can be cited if its narrators are trustworthy; Therefore, a tradition that has even an untrustworthy narrator is not worthy of citation. Based on this, a weak tradition is not only a tradition in which there is a flaw in its narration; Rather, the mere lack of verification is the reason for ruling the tradition invalid. In the meantime, it seems that the Shareh has prioritized trustworthy, as long as the contrary has not been proven.   This principle is actually a shari decree and a way of verifying reliability; Therefore, according to the authenticity of trust, Mohmalin are authentic. According to some evidences of the authenticity of Khabar Vahed, we need to authenticity of trust, and according to some other evidences, the result the authenticity of trust is obtained in another way. In this research, using library sources and using a descriptive analytical method, the theory of the authenticity of trust has been investigated and the result obtained is that according to some traditions and the rules of authenticity, the news of someone who is known as an  Imami narrator in the books of Rejall and does not have an explicit confirmation nor weakening is valid.

The Bonded Goods is legal situation of the commercial goods which is purchased with the cash or credit of bank and is pawned in beneficiary of bank behalf to security the repayment of customer's debt or good performance of his obligations, and that is different from mortgage. The main problem is challenges arising from conservation the goods in private warehouse; because endorsing the private warehouse receipt will be weak security. Background on the scope of bonded goods has no specific research. Ambiguity in the legal nature of bonded goods and differences between the bank and customer and different perceptions of this kind of pledge, made it necessity to conduct research. The objectives of this study are to prevent dispute between bank and customer and reduce the claims.
These are descriptive article so that analysis of the subject and resolving the issue are done with theoretical reasoning.
Ethical consideration: in this article, the authenticity of the texts, honesty and trustworthiness are observed.
The separation between the legal foundations of civil security and commercial security so that possibility of pledging the commercial goods near the private warehouse by including the trusteeship clause, to compensate for the weakness of the security of the bonded goods in the presumption of the problem, is an aspect of innovation and research findings.
The result of research indicates that legal nature of the bonded goods in Iranian law is special pledge that based on the principles of commercial security and in English law it’s nature is often considered equitable mortgage.
Keyword: Security, Pledge, Facility Contracts, Promissory Contracts, Goods in Bond.

The term in the mortgage is presented in two formats; one is due to the deferred debt and the other is making the mortgage contract temporal for the absolute debt. Although the jurists have considered the first one to be correct, this was not, in the strict sense of the word, making mortgage contract temporal, and it is naturally out of the question, unlike the second form, which is invalidated by consensus. Of course, in jurisprudence and civil rights, in addition to consensus, other arguments have been presented to invalidate this. Among them are the requirement of a mortgage contract, the result of its durability and subordination, the requirement of the literal meaning of the mortgage, and similar cases. In this search, we are looking for an answer to this question: Is making the mortgage contract temporal, correct and possible? For example, can money be mortgaged for two years? Is there a legal basis for the time limit in the debt document? The civil law is silent on this matter, but some jurists have clearly considered the non-limitation of the term as one of the conditions for the validity of the mortgage. The result of the discussion is that if the condition of making temporal is considered invalid due to the opposition to the requirements of the mortgage contract, then the claimant's guarantee will be lost and it will become a normal demand. Therefore, considering the silence of the civil law and the conflicting nature of some issues in jurisprudence and the lack of a research background on this issue, the necessity of the present research becomes clear, in which, by focusing on the reliable sources of Imami law with the help of the library, the analysis of making mortgage temporal will be maid, in the form of an additional condition. Considering the silence of the civil law in this matter, the present article, in a descriptive and analytical method, after examining the history of discussions in the works of jurists, criticizes each of the arguments presented and after making some considerations, finally, taking into account the requirements of the applications, the free will surrounding the contract, the principle of correctness, attention to the purpose of the mortgage (creating confidence in the mortgagor and motivating the payment of debt in the mortgagor) and attention to the rational and case benefits of making contract temporal and legal logic, reaches the conclusion that the agreement on making temporal is correct and it does not conflict with its inherent qualities. At the same time, the alleged consensus on the invalidity of the temporary mortgage is not without controversy, and does not hold up against the evidence of the correctness of making temporal. In general, it seems that the presumption of invalidity or at least doubt in the correctness of making mortgage temporal, in the Islamic and civil law, has led the regulators of these contracts to make the whole contract temporal, in such a way that the interests of the some bank contracts are secured, from the supposed problem of the timing. In fact, with this action, while the bank enjoys the rational benefits of mortgage timing, they also distance themselves from this possible problem. Finally, it should be said that the timing of the mortgage and its inclusion in the official documents, in Iran's legal system, not only does not face any obstacle, but considering its rational benefits, it is also compatible with the legal logic and customs of the society. On the other hand, the need to amend the laws and regulations of the legal system in order to make it more efficient requires that every research should include a section for presenting suggestions to the legislator. Based on this, it is suggested that, like the amendments made in some articles of the civil law, in the years after its approval, in order to clear any doubts, the correctness of the timing of the mortgage should also be included in the text of the civil law, with the following content: "Article 794 bis (recommended): The mortgage contract can be long-term and the condition of the mortgage being long-term is not void. In this case, if the considered time comes before the payment of the debt, it is like that from then on, until the payment of the debt, the mortgage guarantee is not considered and the debt is free of mortgage. In this case, the agreement on making temporal, depending on the case, will be interpreted in line with the conditional will to guarantee religion and its belongings and related matters as much as possible. In any case, the conditional defendant can request the mortgage after fulfilling all his obligations.

Credit transactions play an important role in commerce and their necessity is obvious. Issuance of commercial (barati) documents for Pawning; considering the advantages of those documents over ordinary documents, it is an appropriate solution. The legislator in Article 774 of the Civil Code, which has a jurisprudential background, defines the subject of mortgages as the specific goods, and considers void the mortgages of debt and interests; but the legislature has sometime shifted that position and some jurists have issued fatwas on the validity of that juristic act. The commercial (barati) documents is not property on the basis of usage view. The pawning of the mentioned documents does not have a single legal nature. the cases that are subject to the debt mortgage are nullified according to mentioned article. the things that have been considered to bill mortgage is valid due to the validity of that contract. Also, the cases under the name of untitled contract are valid with regard to Articles 10 and 758 of the Civil Code, the principles of validity, irrevocability, permissiveness and non-existence and acceptance of the suspended contract and the issuance of the check for pawning by the legislature.

The ineffectiveness of the mortgage regime in our country has led legalwriters to introduce alternatives instead of mortgage so that the failure of themortgage regime partially to be less. One of these methods that still is notprevalent in our country is using of the mortgage protection policy. Ii notlisted in the current legislation and not express its provisions; thereforeunderstanding this institution and its provisions can helps to this institutionIs more common. Mortgage protection policy located between the propertyinsurance and life insurance and There are features of both institutions in thisinsurance; but this institution has certain characteristics that distinct it fromlife insurance and close to property insurance. In this insurance the risk ofnon-payment of loans transferred to the insurer in exchange for the lender isdetermined as the beneficiary of insurance. In this institution, unlike otherlife, investment is reduced and the investment is the amount of remainingdebt, payment of premium is compulsory and also the beneficiary isirrevocable. Given the effectiveness of this contract in terms of covering therisk of non-repayment of the loan as well as the suitability of this contractfor the applicants, it is necessary to amend the rules on banking and loancontracts in order to further extend this contract.

Sureties are subsidiary guarantees which are subordinate to the principal ones and seek to gain obligees trust on obligor’s credit and his/her lack of infringement in fulfilling the obligation. To achieve this purpose, they provide a guarantee or, in other words, an extra sanction in addiction to legal sanctions for the debtor’s insolvency and obligor’s infringement of fulfilling a guarantee.
In order to provide the sanction regarding obligor’s infringement of his/her obligation, sometimes the guarantor himself undertakes the obligation. Such guarantees are commonly exemplified by different types of guaranteeing someone else’s debts. In some cases, the guaranteed obligation itself cannot be undertaken and the guarantor has to undertake the consequences of obligor’s infringement to guarantee such obligation. Security against fault in title, guarantee of trustee’s encroachment and waste, and good performance bond are the examples of aforementioned case.
Transfer of debt and guarantee are two distinct legal institutions which are not mutually exclusive. Moreover, personal guarantee is different from joint and several liability. In the latter, the creditor does not solely seek a sanction, but he/she aims at having two place of performance for the obligation.

Since there is no clear order on immaterial properties mortgage by civil code, some have totally denied immaterial properties mortgage, by considering religious resources which are the basis for civil code content while some others consider it as being acceptable according to some other kinds of resources. This paper aims at stating some points by taking all of these into consideration: According to the appearance and the history of civil code, immaterial properties mortgage is not acceptable, an idea which apparently supports the idea of the first group. In a set of scattered acts, immaterial properties are put as the subject of a contract which is named pledge. The security contract of such property, according to the utilization antecedents of this meaning, is a novel aspect of secured contracts which is a different contract in Iran with different rules and consequences, on the terms of subjects that are presented in this acts about security. Since the function of law is to solve the problems not to add up the theoretical and practical difficulties, these differences are not desirable. Thus, solving this problem to a large extent can be an answer to the needs, especially current business needs, by modifying the civil code regulations about mortgage contract principles (considering the religious grounds for these modifications) and approving a new provision with considered rules and results, specifying the acceptance of immaterial properties pledge.

Commercial documents are instrumental properties which transferring, taking possession or delivery of them is the same as transferring, taking possession, and delivery of the value stipulated in them. As a matter of fact, such documents are "modern capitals" of the society with various functions. One of their functions within the commercial convention is "commercial authentication". According to laws and rules of many countries, commercial authentication is made through "endorsement giving the endorsee a right of a pledge". Since the Trade Law of Iran keeps silent about this function, it is analyzed and justified through the contract of pledge. Because of non-conformance with the conditions of pledge in the Civil Law, this analysis faces some problems. Many attempts have been made by professors and researchers in the field of jurisprudence and Law to adopt the point and provide relatively proper solutions each of which has some advantages while it is not free of scientific and practical difficulties.The present writing is an attempt made to juridically and legally justify commercial authentication as a new-emerged contract which is covered by the noble verse "Fulfill your indentures" so that the way may be paved to include it in the Act of Trade which is in the process of approving by Islamic Majlis (Article 349) or to add an addendum to the Article 247 of the present Trade Law, which is a step taken to eliminate this problem from commercial and banking fields.

Merchants put the commercial documents to security in commercial relationship with each other and banks. That is called "mortgage of commercial documents" and this action is computed by endorsement method for security. Commercial law of Iran hasnt foreseen such a institution to mortgage for commercial documents. So court judges and lawyers analyze the case of mortgage of commercial documents by civil law and mortgage contract; but they face with some problems to do such action. One of these problems is voidance of mortgage contract from mortgagee. This essay attempts to present a solution to this problem. in the name of god.