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

One of the issues of jurisprudence and transaction law is related to the interpretation of the will of the transaction party and the legislator in the meaning of the words of transactions and determining the valid transaction from corrupt and its legal and jurisprudential effects. The meaning of transactions in the title of the issue is any type of jurisprudential and legal action, the realization of which is dependent on the execution of a specific recital. The question of the present research is whether the intention of the transaction party and the customary and shari'a legislator of the words of transactions only includes its correct state or does it also include its corrupt state? Answer to each question has its own jurisprudential and legal implications. This research was carried out with descriptive and analytical method and library tools and came to the conclusion that the reference for distinguishing custom in the interpretive principle of validity and corruption is carrying the meanings of the words of transactions on their authenticity.

Due to social developments, possible contracts have many practical examples such as insurance contracts, pre-sale of artifacts, etc and are popular in the society. This contract is not defined in Iranian law and jurisprudence, and there is a difference of opinion regarding its nature and authenticity; Some jurists consider this type of transaction to be gratuitous and invalid, while others consider it to be a synonym of suspended contract, contract of chance, and forbearance contract. But this type of contract is accepted in English law and a contract that at least part of it is related to an emergency or possible situation. The effect of this contract is created separately at the time of the conclusion of the contract and the parties have mutual obligations, but the recovery of one of the parties to the contract or both parties due to the effect of the contract depends on luck and the profit and loss of the parties and its amount depends on a possible incident in the future. Nevertheless, despite the similarity with other similar contracts, the mentioned contract is different in terms of basics and conditions, and its characteristics are covenantal and continuous. It does not consider it effective and as a result the possible contracts are valid and valid.

The currency system of the country has been in turmoil in recent years due to the imposition of international sanctions against Iran, and illegal currency brokers and traders have fueled this turmoil. Meanwhile, some unauthorized foreign exchange brokers and dealers have further provoked the turmoil. Unfortunately, by forming groups of hundreds persons in real life and virtual environments, some of the brokers attempt transactions called “foreign exchange value tomorrow” something which, according to economic studies by the central bank of Islamic republic of Iran, have created disturbances in the Iranian economic system. foreign exchange value tomorrow transactions include those transactions when the parties, without giving or taking, postpone foreign currency delivery to tomorrow or some days later, while most of the time no delivery takes place, and the parties just regard the exchange rate difference. According to the regulations of foreign currency exchange and amendment of anti-smuggling of goods and currency act, foreign exchange value tomorrow transactions, are considered illegal.

The important role of waqf (endowment) in religious, moral, cultural, social and economic issues has made it one of the basic jurisprudential issues. The endowment is dividable in different aspects. One of its division is in respect of time. Waqf in terms of time is either absolute or limited. The validity of absolute waqf is accepted by all jurists, but time-bound waqf has not been accepted by majority, although some, not a few, have accepted its validity. The purpose of this article is to examine the question of whether the reasons for the condition of the eternity of waqf can prove this condition, and as a result, the time-bound waqf becomes invalid, or not? After a brief explanation of the temporary and eternal endowment, this study evaluates the reasons for the condition of eternity of endowment in a descriptive-analytical manner and follows the hypothesis that these reasons not only do not limit the validity of the endowment to the eternal endowment. Rather, by reviewing the truth of the endowment and explaining the reasons for the theory of the validity of the temporary endowment, its correctness can be strengthened. Proving the validity of this type of endowment has many fruits that guarantee the necessity of this discussion.

In recent years, due to the expansion of information and communication technology, making money through the transaction of goods and services on this platform has been greatly promoted, in such a way that everyday users are encouraged to do this type of transactions through the many advertisements of startups. Placing these transactions on programmed internet and telecommunication systems that lack real components and accesses has made human intervention in it to a minimum and it leads to creating a space and time distance between the elements of the transaction, including demand and acceptance. However, according to the view of some jurists, the condition of the validity of the transaction is succession in demand and acceptance. Using the descriptive-analytical method, this article has analyzed the quality of its realization in the transaction on the platform of information and communication technology, while weakening the condition of succession in the contract, and has considered earning money in this way as valid.

Based on the legal status of a cotract, it may be subject to one of the following conditions: validity, invalidity, corruption, non-existence, non-influence. Some of these legal situations may turn into new situations; Among other things, if a valid contract is annulled by the judgment of a judicial authority, it means that it becomes a void contract. In French law, judicial annulment is accepted as a general rule (with one exception) in cases where the legal action is subject to the status of nullity (both absolute and relative); However, in Iranian law, there is no such necessity in invalid legal acts, and in general, the annulment of a valid legal act by the judgment of a judicial authority is considered an exceptional matter, and it is realized only in cases of future property and annulment of official documents. Therefore, with a comparative study of the two legal systems of Iran and France, we will find that although the institution of "judicial annulment" is the same in nature in both systems and as a result, some of its effects are common, but the difference in the examples has caused specific effects, the most important of which is the regressive effect of judicial annulment in French law, while in Iranian law, the annulment effect looks to the future and does not spread to the past.

Proviso is one of applied topics and it is very common in our society. As one of its types, negative condition is divided into two groups of material and legal. Regarding a legal negative condition, a person who is responsible to perform a condition undertakes contractually not to perform one of the obligations - a contract or unilateral obligation. One very important question which arises here is that, if the person who is responsible to perform a condition violates their obligation, and in legal terms, if they perform a negative condition, what would be the jurisdictional or judicial order for the transaction or for that violation? There is disagreement between the jurisprudents and lawyers in this regard. Some considers the transaction violating the condition as valid and also consider the person in whose favor the condition is made a right to claim compensation; on the other hand, some consider such a transaction as invalid; and, some regard such a condition as invalid. Some of jurisprudents and lawyers consider a transaction which violates negative condition as invalid; and, finally, some regard it as unopposable. Our hypothesis is that, it depends on the negative condition which is violated. In other words, if the obligation is to perform a unilateral obligation such as cancellation, the transaction violating the condition is invalid; but, if the undertaking is the omission of an act, the transaction violating the condition is considered as to be in the observation state.

The agreement to abandon a certain legal act, whether the subject of the main obligation is in a contract or in the form of a condition attached to the contract, according to various general legal principles, including the principle of validity and the principle of irrevocability and according to articles 10, 219, 231 and 237 of the Civil Code is valid. This sometimes appears in the form of a condition of a legal forbearance and sometimes it takes the form of a negative status condition (Shart-e Natijeh). When this kind of agreement is violated, we will inevitably face the issue of validity or invalidity of the contrary legal act.When facing this issue, three basic questions can be asked: First, whether the legal act contrary to mentioned agreement should be considered invalid, or the validity of the said legal act should be admitted and the obligee should be directed towards receiving possible damages from the offending obligor as a solution more compatible with Iran's legal system. The other thing is whether, one of these two solutions being chosen, a single procedure should be adopted and the same sanction be applied in the event of a violation of either of these two forms of agreement, or the sanction of violation of legal forbearance and negative status clause are different n the first of which thevalidity of the legal act and in the second the invalidity of the legal act are acceptable. Finally, if we believe in the necessity of distinguishing between the sanction of the violation of these two forms of the agreement, what is the criterion for distinguishing the two from each other. The study of jurisprudential sources, legal books and articles, as well as a brief reflection on judicial precedent shows that there is no unanimity of opinion regarding the sanction of the breach of these two forms of agreement and that, especially among lawyers, the theory of the necessity of differentiating between the sanction of legal forbearance and the negative status condition has a more significant influence.One of the jurists who has dealt with these questions in fair detail in his numerous works and believes in the necessity of distinguishing between the sanction of legal forbearance and the violation of negative status condition is Professor Katoozian. Although many jurists have also looked into this issue, it is more necessary to emphasize and focus on his works in this field for three main reasons: firstly, the theories of professor Katoozian, including this theory, have a really special importance and credibility in Iran's legal and judicial system. It has been and continues to be the place of reference for judges, lawyers and other jurists. Another thing is that in the opinion of the author, there is some kind of ambiguity or incoherence in the contents of his analyses regarding the above questions, and the present study provides the opportunity to re-examine his positions in this regard. Finally, the criticism and detailed explanation of Professor Katoozian's views and opinions, like any other great theorist, apart from being a kind of appreciation for their years of scientific and effective efforts, leads to the emergence and flourishing of new ideas and solutions and ultimately to the development of the legal system.In this article, the author has tried to analyze Professor Katouzian's theory regarding the necessity of distinguishing between the sanction of legal forbearance and the violation of the negative status condition based on the above questions. The research shows that his theory is not compatible with the famous opinion of the Islamic jurists, the standards of the civil Code, and the fundamental orientation of the judicial procedure, and that in case of violation of any of these two forms of agreement, the sanction of invalidity of the contrary legal act must be defended.

One of the differe nces between the types of sale among Imami jurists is the sale of concessions. Therefore, research on the reasons for the validity of the sale of conce ssions from the persp ective of Imami jurisp rudence is necessary. The form of expla nation, description and analysis deals with this issue Some jurists consider the concessions as a shaky sale, such as Allama Hali and Moha ghegh Hali, and have given reasons to prove their claim. Like narration, principle and consensus. However, some jurists, including Imam Khomeini, consider the concessions to be valid and necessary, and have cited arguments to prove their claim, and reject the theory of those who do not consider the sale of conces sions necess ary and correct. Therefore, the conditions that are nece ssary in the sale, as well as all the options, are prese nt in the sale of conces sions.

Process of establishment of contracts and their foundations, should be proportionate to the evolution of the economy. Contract is an obligation and should be with highest efficiency, benefit and satisfaction. Each of these things has many levels and in every age finds its own meaning. Foundations of contracts, such as validity, satisfaction, no loss and no legally foolishness, are relative and contain numerous degrees. A contract may be efficient, accurate and effective at a time and be void in other times. One person also may be legally foolish in one contract but grown in other. This paper reveals that each meaning must be consistent with the same period of time. This paper is an analytical text and its Hypothesizes that for any foundations should refer to specialist practice and normal practice would induce to static and unchanging.

Among the important issues in Islamic Law are unauthorized contracts. Considering the jurisprudence books both in Shia and Sunni theology; it is revealed that there are many detailed discussions and branches studied by Islamic jurists. Of these, the most fundamental issue is to identify the descriptive effect of the aforesaid contracts. Other discussions about unauthorized contracts are dependent on accepting the validity of unauthorized contracts. This article specifically seeks to find the answer to what the descriptive effect of the unauthorized contracts is in Shia and Sunni jurisprudence? This research shows that there is no consensus nor among Shia or Sunni jurists and generally some think the unauthorized contracts are valid and others disagree. Referring to the evidence of verdicts and critiques and evaluations of unauthorized contracts validness, it is understood that the reasons of this group despite of their great fame, are not able to establish the validity of unauthorized contracts and the opposite view weighs more.

The issue of personality is one of the fundamental and vital elements in any contract in all legal systems. This dissertation discusses the effect of personality in the Iranian legal system in light of legal doctrines and opinions. In some contracts, personality plays an important role, but in all contracts, this effect is not the same. For example, in this area, we can refer to Article 102 of the Civil Law of Iran according to which ambiguity concerning the party to the contract does not affect the validity of it, except in cases where the personality of the party is the main reason for concluding the contract. In addition, according to the Roman-Germanic countries law, the personality is of significance. In other words, when a confusion occurs concerning the personalities of the parties, it is considered as a mistake in the essence of the contract which can invalidate all such contracts in general. Because in these contracts, in general, personality is one of the main elements that is considered as a contract and it is the absence of intended personality which leads the contract to be invalidated. In this dissertation, the author explains this issue in an analytical way in the system.

The scholars of the fundamentals disagree on the effect of prohibition on trading, but are less convinced of the effect of prohibition on trading. Most of them believe that when it comes to the result or the cause it causes the transaction to be canceled and corrupted. From a legal point of view, the legislature sometimes invalidates the guarantee of enforcement and sometimes does not. In some cases, he also expresses his disagreement with the act by saying, "Forbidden, not allowed, should not, ..." In this case, the question arises whether the mere entry of the transaction will invalidate the transaction and not affect the agreement of the parties? Or, on the contrary, in keeping with the principle of authenticity for the sake of the explicit mandate of the legislator, should the transaction be considered correct? In this analytical and descriptive article, it has been examined that the legal difference between the prohibition effect when it belongs to the underlying conditions and the basis of the transaction is different from the cases where the prohibition applies to conditions other than the essentials and to the extent applicable. Depending on the category and criteria presented, it is sometimes a guarantee of non-cancellation and sometimes other guarantees such as cancellation and even ineffective. But, in principle, there is basically a duty to forbid impeachment.

Propagation is one of the things imaginable about property. In this case, instead of the ownership of the property in general, it belongs to one person, two or more persons own the property. In the case of distribution, the ownership of the partners is in all components, so that each part of the property that is considered is shared by all partners, and no partner can have any exclusive claim against the part of the property. The question is, does one of the partners have the right to rent the property to another? There are two general points in this regard and it is accepted in Iran's law following the famous jurisprudence of the Imams. There is also a controversy in Egyptian law, but in the end, the rights of this country, with a decree, have been passed to the acceptance of the theory of the rentier rentals Is. However, both in the doctrine and in the judicial system of the country, there are sometimes opposing views on the inaccuracy of mortgage lease. In the present article, the concept of hire-rent, the basics of admission, has been investigated.

Human actions are divided into three parts: worships, traditions, and habits. The religion commandments are wajeb, mustahab, Makruh, Mabah, and Haram. In this article, we are dealing with the worship subject which leads to the man's proximity to God and future life reward. Because, a charged person must know whether he can change the worship subject or not and if doubts are raised in the subject of worship, which principle should be cited in order to put the charged person out of doubt. The jurisconsults believe that the "Esalatossehhe" is applicable in transactions and habits which in this article the possibility of citation to this principle in worship from the Sunnis jurisconsults point of view will be studied. Also, different Sunnis religion disagreements over the issue of invalidity and corruption in the worship and various opinions on this issue and also types and conditions of worship and corruption-related effects in worship is discussed. Then with the citation to available sources, we will be dealing with the citation Impossibility to the "Esalatossehhe" and the Sunnis jurisconsults reasons In the field of worship. In the end, their obeyed principle in worship which is “Esalatol man” will be disputed.

Traditionally, the bill on contracts has been disputed among lawyers and jurists. Popular opinion, knows the reception as part of the elements of contract. Consequently until the reception is not fulfilled the contract is concluded and has no effect. But civil law is silent on the role of reception in mortgage contract. It must be noted despite articles 47, 364, 798 of civil law regarding the role of reception in (devotion , Sale of gold) and donation expressly considers reception as an element of contract, and without it the contract is not cancelled, such constraint cannot be seen about mortgage. This silence arises from the ambiguity which analytically exists over the role of reception. In this paper, while reviewing various opinions, a new point of view has been taken to the subject, and with analysis of the elements of the contract and the common intention of the parties we concluded that the reception in mortgage contract is in fact the suspension on the establishment of the effects of contract not one of the elements of the contract.

what is being discussed and investigated in this article is the principle of correctness of unilateral acts. The principle of correctness is one of the norms that applies to most branches of jurisprudence (Fiqh) including transactions and acts of worship. The majority of Islamic Jurists (Fuqaha) are of the belief that the bases for the validity of the principle of correctness, like “fulfill obligations” and “trade by mutual good-will”, include unilateral acts as well. In contrast, some Islamic Jurists have raised objections to the enforcement of the principle of correctness in unilateral acts. After reviewing and criticizing these objections, we will conclude that the principle of correctness is also applicable to unilateral acts. Therefore, we should come to the view that Article 223 of civil law which stipulates that “ any transaction made is predicated on correctness...” also includes unilateral acts. Accordingly, after the attainment of the conventional title of unilateral act and doubting its conditions on the basis of the principle of correctness, we can affirm the correctness of that unilateral act.