مجله مطالعات فقه امامیه
پیاپی 6 (بهار و تابستان 1395)

The laws that regulate the relation between the landlord and tenant are amongst the most important of laws of every country. As well, the discussion concerning goodwill and the right to business and trade are among the important topics that relate to how a shop or store may be rented. Goodwill which is one of the important topics in legal, jurisprudential and economic spheres is a special type of intangible asset that represents that portion of the entire business value that cannot be attributed to other income producing business assets, tangible or intangible. The nature and literal and technical meanings of ‘goodwill’ need further research and investigation so that in the analysis concerning the various types and manifestations of goodwill the rule concerning permissibility or impermissibility of receiving or charging goodwill may be precisely and properly examined from the viewpoint of prominent jurisprudents.

Human being's aspiration for perpetuity has caused them to look for some innovations and strategies such as waqf (endowment) to attain his ultimate objective. Before the emergence of fiscal or monetary economy, the only way for waqf was the endowment of immoveable properties. Today, many people are unable to endow immoveable properties due, mainly, to their being costly and unaffordable. However, with monetary economy becoming more rampant the discussion concerning monetary endowment is now scientifically studied in academic circles. Monetary endowment is important for the simple reason that everybody with whatever he affords can embark on endowing something which is the main manifestation of continuous charity. Muslim jurisprudents have discrepant views about monetary endowment. The main cause of this discrepancy is the condition that the principal asset should be preserved and the benefit from the endowed property should flow. In this article, first the views of the opponents of monetary endowment have been examined and criticized. Thereupon, the reasons of the proponents have been discussed. The best argument put forth in this regard is the general purport of reasons, validity of endowing anything valuable and the common orientation. If anyone of the above arguments is poor, a secondary principle of validity of endowment would validate monetary endowment. Monetary endowment, if valid, can have a lot of economic functions for society.

One of the current day topics in Islamic jurisprudence and law is how inflation or a general increase in prices and fall in the purchasing value of money can be compensated. There is discrepancy among Muslim scholars in this regard with some differentiating between the time when the money or asset is usurped and when it is not usurped. In the case of non-usurpation, there is also a difference of opinion when there is tolerance or no tolerance in the event of a default in payment. In case of usurpation and tolerance, they believe that compensation should be made in line with the ‘principle of no harm’ because the owner has suffered a loss. In cases other than these, they have adopted a ‘no compensation’ stand due to the owner’s action ad consent. The hypothesis is that the principle of action does not signify non-liability as a result of currency depreciation. The owner’s action simply provides ground for non-liability but it does not signify creation of a rule (ordinance) for non-liability. If the principle of action fails to signify non-liability, the reasons for compensating a fall in currency value will remain unopposed. The principle of no harm is not amongst the reasons for compensation because it does not connote the necessity of making compensations. In fact, the principle of liability can be used ere and it means that there should be homogeneity of goods for compensation and that purchase power is among the homogenous attributes which need to be compensated.

An appeal or an application to a higher court for a decision to be reversed has always been a challenging issue in the jurisprudence of the Ahlulbayt (AS). The challenge grows stronger when the judge is a Mujtahid. Moreover, presuming and not presuming an established and operating legitimate government or an absence of such government can have substantial impact on the fate of this discussion. This differentiation and its aftermaths have been largely neglected in the books authored by scholars in regard. This article, however, claims that in the case of an assumed established legitimate government, there is no reason for prohibition of an appeal or revision of a judicial decision, although in the absence of a legitimate government only in some cases revision or an appeal in the decision made by the ruler is forbidden.

Rediscount is the act of discounting a short-term negotiable debt instrument for a second time. Banks may rediscount these short-term debt securities to assist the movement of a market that has a high demand for loans. Among the duties of the central bank is to discount (a bill of exchange or similar instrument) that has already been discounted by a commercial bank.
This article seeks to study the legality of discounting and changing its rate. If the commercial bank’s discount documents feature a negotiable debt, the rediscounting operation of the debt would be based on interest which amounts to usury and which cannot be transacted in an interest-free loan. However, if these papers are discounted with the intention of transferring their possession to the central bank, the rediscounting operation is then considered to be purchase and sale of a debt to a third person for less than the nominal amount in which case there is no objection to it from the Shari’ah point of view. The discount rate is at the central bank’s discretion. Additionally, the central bank being the representative of the Islamic government has the right to manage liquidity by changing the discount rate, thus legalizing the central bank’s rates.

Late Ayatollah Khoei is one of the few jurisprudents who, in the contemporary age, changed the horizons of Shia jurisprudential studies. Despite relying on classical jurisprudential texts, he adopted a highly effective method in presenting various approaches that actually emanated from his extensive and in-depth knowledge of hadith, legal theories and biography (ilm al-rijal). Naturally in the area of social management and government, he has presented views that are different from those of his predecessors, views that can be explained from different dimensions. For instance, one of the angles worthy of observation is his prediction and consideration of the government’s financial sources and its being qualified for possessing properties. As for as Late Khoei’s intellectual legacy is concerned no instance showing the state’s ownership is observed in it. This is one of the challenges of his political jurisprudence which seems to be overemphasizing upon the literal aspects of things and which has denied him the opportunity to complete this theory. In addition, the conclusions which result in institutionalized accumulation of wealth in people’s hands are not organized and coherent with the literal dimensions of the texts. Late Khoei’s approach is to continue the well-known discourse.