فصلنامه فقه و اصول
پیاپی 116 (بهار 1398)

A requirement of Hadd theft on which there is consensus, in addition to the requirement that the stolen goods are kept in a place of safe custody, is that the thief, alone or with another’s participation, removes the goods from the place of safe custody. One of the most important doubtful instances of removing the goods is theft while under hypnosis. The authors, after analyzing the criterion of removing the goods from the place of safe custody, have concluded that, in certain instances, it applies to the hypnotist's act, i.e. where they have the capacity that the act of removing the goods from the place of safe custody is attributed to them and their act is an example of contributory removal. In some other instances, the Hadd of imputation is executed against the hypnotized person i.e. where they have the capacity that the act of removing the good from the place of safe custody is attributed to them. If there is doubt whether removal from the place of safe custody has taken place, although there is dubiety concerning concept and over the least and the most of one thing, given Mohammad Ibn Muslim's  sahiha (authentic) tradition,  the requirements of removing the good from the place of safe custody, as well as the requirement that the goods are kept in a place of safe custody, are included in the concept of theft and accordingly, the theft verse loses its generality and may not be invoked. Therefore, in such case, due to astonishment and wander, by invoking the requirement of Dar rule (no Hadd is executed in case of dubiety), Hadd of imputation is not executed against the thief.

Bail (Kafala) is an irrevocable contract. Although under the principles applicable to irrevocable contracts, stipulation of option in these contracts is permitted, the legislator has not declared whether such stipulation is valid or void. Therefore, the main question remains what is the remedy of stipulation of option in bail contract? Different opinions have been suggested by Islamic jurists and it is necessary to determine the valid opinion and accordingly, the legal status through comparative study and criticizing the suggested opinions. The purpose of the present paper is to determine whether stipulation of option in bail contract is valid or void according to valid fatawi (verdicts) through descriptive method and destruction of valid jurisprudence sources and library tools. As the most important result of this research we can say that stipulation of option in bail contract is valid and in addition to the stipulation, the contract is valid as well. Therefore, the legislator is recommended to enact an article and declare the validity of stipulation of option in bail contract and end the current controversies.

The crime of blasphemy against the holy Prophet is a significant crime against religion in the recognized literature of Islamic jurisprudence in a way that it leads to capital punishment and each Muslim hearing the blasphemy can execute the penalty. The Islamic Penal Code, in articles 262 and 263 and 513 of the discretionary penalties (Tazirat) has described this crime. Nevertheless, there are questions and ambiguities about this crime, e.g. how and with what words, this verbal crime is committed? In addition, is the word the mere object of the crime or act, caricature, drawing, clip, joke, animation and novel may result in the above said crime? The present paper, through relying on Islamic jurisprudence evidence and Islamic jurists' opinions and rational arguments and reasons, is intended to study the semantics of blasphemy against the holy Prophet and offer a criterion of the realization of its actus reus.

The duty to pay Khums and possession of its subject matter deserve reconsideration from the viewpoint of positive and imperative consequences. Such reconsideration depends on the nature of this rule and how it applies to property. The above said rule may be conceived in three ways:  pure imperative rule, positive rule of indebtedness and joint ownership (real joint ownership, joint ownership of property and joint ownership of a whole out of a specific aggregate of goods). The majority of Islamic jurists maintain that this rule is not of a pure imperative nature and evidently, a positive rule is applicable to the case as a result of the imperative rule. Nonetheless, the nature of this positive rule is contentious. According to the famous opinion, such positive rule is the realization of joint ownership for Khums owners and unless the property is destructed or there is excessive use or failure of due care, it does not indebt the duty-bound person. However, this opinion is in contrast with certain other elements of the rule. By extracting the elements of Khums and given the literal meaning of Quran verses and hadiths (traditions), one may conclude that although the initial rule in this field is its application to the physical property in the form of joint ownership, such ownership is instable for Khums owners and the property owner's possessory acts make him indebted and his possessory acts as to Khums subject-matter are valid and he is merely responsible for the value and price of Khums.

Ability is a general requirement of duty which is sometimes considered due to non-ability to fulfill the duties simultaneously and is known as perfect (legal) ability. The question is at what stage of percept (creation, actuality and non-contingency); non-ability to fulfill two duties simultaneously is effective? In this regard, three main doctrines have developed among Usulis: Akhund and Shahid Sadr maintain that legal ability is a requirement for the creation stage, Naeini believes that legal ability is a requirement for the actuality stage, Imam Khomeini, Sheikh Hassan Helli and Mohaghegh Tehrani are of the opinion that legal ability delimits the non-contingency stage and has no effect on the two previous stages. In this paper, after explaining different opinions concerning the above said three doctrines and the problems related to each opinion, the authors have concluded that: first, the rational ability must be altered at the creation stage and this stage must be restricted; since absolute speech as to incapables does not have the excitation and deterrence titles and leads to burdensome duty and absurdity; second, perfect and legal ability i.e. fulfilling two inconsistent duties, is of significance at the non-contingency stage; since in cases of inconsistency, usages of the wise is to consider themselves liable and attempt to find a way to obey.

Context, as the mental framework and format of speech and the place where evidences are realized, plays a role in understanding the intention of speech and is arranged in the form of either previous or future attached and connected verbal evidences. Detached evidences are considered as attached evidences if applied in the speech of a speaker like the divine lawgiver whose habit is to apply evidences separately and rely on them; hence, attachment in his words constitutes detachment. Textual evidence, due to its closeness and connection to the speech, is considered as attached evidence; even one may say the former is of the latter’s type or identical to it. The intention and termination of the speech, although helpful as an essential element in this regard, lack the necessary capacity to be included into the definition, since they fail to cover all instances of context conveyance including instances not intended by the speaker such as implicit conveyance. In addition, a definition of context which does not include previous verbal evidences or contextual evidences is a strict definition which is in contrast with its wide cases of application. On the other hand, consideration of detached evidences in all speeches even in the divine lawgiver's is an extended and defective definition of context.

According to the Shiite jurisprudence literature, non-suspension of contracts and unilateral legal acts is among the general rules of contracts jurisprudence and has been criticized by Shiite jurists in the last two centuries. The following are the main issues dealt with in this paper: historical background of non-suspension rule, its formation over time and its conversion into a general rule, introduction of the Shiite jurists who have contributed to this conversion, identification of the fields and trends of criticizing this rule, and given Sahib Orvah's special place in the criticism field and in offering particular jurisprudence opinions, discovering his role in criticizing the famous opinion and promoting a new one. The purpose of this paper is to clarify the above said issues through a historical and with a person-centered approach in order to introduce a part of Shiite jurisprudence history in the general rules of contracts jurisprudence area. Therefore, the present paper begins with subjectology of non-suspension rule in the Shiite jurisprudence literature from Mohaghegh Yazdi’s viewpoint and after trying to find out the background of this rule in the Shiite jurisprudence, explains Sahib Orvah’s opinion, its bases and his critique of the famous opinion.

The duty to fulfill obligations, specifically those derived from contracts, is an evident principle in law and Islamic jurisprudence, emphasized on in the “fulfill contracts” verse. Many issues arise with respect to this rule and its effects and implications, among which is the time of performance of contractual obligations. Indeed, where the contracting parties have determined the delivery time either expressly or impliedly, the performance time, as a result of pacta sunt servanda is the time agreed upon. In case such time has not been determined by parties, the usage and custom concerning it, if any, shall be obeyed. Otherwise, interpreting the absoluteness of contract as conveying immediate performance may be more famous in the Islamic jurisprudence. In the Iranian Civil Code, in the first case, under articles 10 and 219, in the second case, under articles 220 and 225 and in the third case, under article 334 of the Civil Code, the above said conclusions may be inferred. The Egyptian Civil Code and the Egyptian jurists have the same attitude in such case. However, validity of this construction in the third case and in case of validity, the notion of immediacy are contentious. The purpose of this paper is to study such arguments through a descriptive-analytic method; according to this research, the absoluteness of contract must be understood as leading to obligation to immediate fulfillment after demand.