جستجوی مقالات مرتبط با کلیدواژه « شرط ارتکازی » در نشریات گروه « علوم انسانی »

One of the challenging issues for the young couples, sometimes leading to deep and harsh differences and argument (between the two parties) is the problem of having a child or not. The major question in law is whether a consequence of marriage, whether each marriage by itself hassush a consequence or whether marriage has no such a consequence per se unless the condition of having a child is mentioned in the marriage contract and the relevant documents. There exist two ideas and theories. First, having a child is the consequence of marriage by itself, and if the couple do not want to have a child, it must be mentioned in the contract wheather expressed or implied. Second, marriage by itself dose not have the consequence of having a child unless it is stated in the contract whether expressed or implied. the present article with an approach towards fegh and law tends to prove this theory that although marriage bt itself has no consequence of having a child, each marriage based on the term implid in act and has the consequence. In other words, it is not necessary to express in the contract, but normally having a child is the term implied in act unless not having a child is mentiond in the contract whether expressed or implied.

Some terms are so popular in the contract that without which the contracts cannot be correctly construed. Such conditions are called “implicit” terms or provisos. Sometimes, that they are not explicitly stated is based on the previous agreement made between two parties (supposed terms); sometimes because of customs and practices, “presence” of a term is taken as granted in the contract (customary conditions) and, some still other times, presence of a term in the contract is necessary (legal terms). And some other times, it is fully clear that a term is a term and it needs not to be stipulated. Such terms are called, in jurisprudence, irtikazi*** terms. The various kinds of provisos have been discussed; no discussion, however, has been so far made about irtikazi terms and only some jurists have made uses of them to explain some juridical-legal issues. The irtikazi term is a term which has rooted in the minds of the parties to the contract even though they may be unaware of it; it is, however, a necessary part of the contract. This term is among correct ones and should be fulfilled. Some consequences of this term may be observed in issues such as unsaid defects, condition of virginity in the contract of marriage, option of loss, option of defect and the like within the scope of Imami jurisprudence and Iranian Law.

“Condition” means being obliged and bound. In its technical sense, it is an obligation within another contract. The contents of the condition are mentioned explicitly or otherwise in the text of the contract. The former is called an express condition and the latter an implied one. Different types of implied conditions are as follows: essential term, customary term, legal term, mentally established term. There have been investigations and discussions on various kinds of implied term. However, the mentally established condition has not been investigated yet. In contemporary times however, some jurisprudents have taken this type of terms into account in order to explain certain legal issues. However, there has not been any study or investigation on the nature and concept of this condition, nor on the foundation of its validity, nor on its exact classification, extensions and effects in jurisprudence and law. The outcomes of this research indicate that mentally established condition is one established in the minds of the parties to the contract. It is a concomitant of the contract although the parties to it have not had any actual attention at the time of conclusion. Mentally established condition is among the implied conditions finding its validity from the generality of the proofs of validity of conditions. Some of the consequences of mentally established conditions can be seen in legal issues such as right of lien, option for delay, option for lesion, option for defect, destruction of the object of sale before delivery, the maintenance of wife in the period between marriage contract and wedding, the necessity of liquidation of the object of sale and the like in the Shiite jurisprudence and the law of Iran.

The blessed Islam religion has made the members of families responsible for some rights and duties in order to balance the holy base of family. The jurisprudents are finding the rights and duties by a systematic inquiry within the framework of Fiqh science. On the basis of their findings, one of the rights which the God on high has recognized for a man is that his wife doesn’t have to go out of home without his permission, yet it wasn’t an important question when the old styles of life made the women more interested in staying at their homes - But this subject has encountered some questions when the new styles of life lead the women to go out of home to the society (or to the virtual space). In this article at first we will take care of some studies about the Fiqhi position of this subject and then we will research the connection between the right of a man and the second topic of ''the harm and losses ''.