جستجوی مقالات مرتبط با کلیدواژه "presumptions" در نشریات گروه "فقه و حقوق"

Inclusion of penalty clause (predefined damages) in contracts causes the obligee to sustain less burden of proof in order to claim the same, especially in such cases the latter doesn’t have to prove that a damage is sustained. In monetary obligations, unlike non-monetary ones, the value of penalty clause is an important and challenge issue as the same is a performance guarantee. Here, stressing that the amount of penalty damages in monetary obligations is a presumption and parties – whether both or one of the parties is a bank or credit entity – are not allowed to fix penalty clause at whatever amount as the desire, it’s been argued that when penalty clause is not included in an contract and when the damaged party proceeds to claim damages under the law, the latter may claim delay damages only up to a certain ceiling and to the extent of the loss of the monetary value, which is explained by the fact that such rules are presumptive. Thus, if the parties wish to include the penalty clause condition in the contract rather than relying on the relevant provisions of law, they may not include penalty clause in the contracts at whatever amount as they desire because the rules related to penalty clause or contractual damage also fall within presumptions subject to law.

Achieving a good or desirable understanding is one of the concerns for every
nterpreter or theory of interpretation. One of the issues seen as a major obstacle in achieving such an understanding is the interference of presuppositions. The present article, as a descriptive analytical study which applies library data and textual references, aims first to investigate the nature and types of presuppositions and their effect on understanding - either their essential or detrimental influence - from the perspective of scholars in philosophical hermeneutics and Islamic sciences (including tafsīr and the principles of jurisprudence). Then, it seeks to describe and analyze the methods offered in these sciences in order to prevent or control the presuppositions and the degree of success for each science in this regard. Finally, it has been shown that taking advantage of the hermeneutic methodology - such as openness, dialectic, and hermeneutic circle - together with the advantages of the principalist-interpretive method - including consideration of the typical expression and surface intention and conventional evidences like lexical principles on the one hand, and attention to the spiritual and moral competencies of the interpreter on the other hand - can overcome the shortcomings of each of these two methods and make a complementary interaction between the two sciences.