نشریه مبانی فقهی حقوق اسلامی
سال پنجم شماره 1 (پیاپی 9، بهار و تابستان 1391)

Iqaalla-h is an agreement between two parties to revoke voluntarilya revocable contract. The legitimacy of revocation (iqaala-h) can bejustified based on Koranic verses and with the assistance of reason ,as well .Jurisprudents , however, consider traditions from the holyprophet of Islam(p.b.u.h) sufficient in this regard, among whichthere is the tradition”.Anyone who accords with the other party’s willingness to revokean agreement , God will accept your(the prophet’s) intervention, onthe Doomsday, for that person’s sins to be forgive”. Thejurisprudents of two Islamic Sunni branches,Maalikee and Hanafee,regarded revocation (iqaalla-h) as a religiously recommendableaction (mosta-hab) which accords with pthe prophet’s traditions.Jurisprudents of the two Islamic branches, Maalikee and Hanafee ,all consent to revocation (iqaala-h) referring to the traditions of theholy prophet (p.b.u.h) and have stated its authenticity .However,there is disaccord among them concerning the definitions,conditions, nature and effects of revocation (iqaala-h).

One of the reasons for separation of couples is “expropriation”,which happens when the wife gives some property to the husbandbecause of dissatisfaction to get separated from him.The question is that, whether in such case it is a religious duty forhusband to comply with the condition of releasing his wife? Andwhether this separation should be done by court? And finally,whether the separation is automatically done after the parties agreedon the property should be exchanged or it is necessary to readdivorce sermon?Jurists didn’t pay much attention to the first question and about thesecond one, the popular opinion is that it is not necessary to go tothe court. And in antecedent jurists’ opinion about the thirdquestion, it is not necessary to read divorce sermon and most recentjurists believe it is necessary. Here the assumption of the need to goto court and no need to read divorce sermon is proved.

In accordance with opinion “Islamic jurists” and under the “civilcode”, in the sale contract, whenever the subject of transaction isdissipated before the transference of the risk to assignee, thecontract would be rescinded and buyer legally should give backthing has gotten from assignee. In law, The firest of rule is namedguarantee of exchange and towel of rule is named security faults intitle.This article attempts to examine this rule, guarantee of exchange,that hitherto was carried out at the performance of reciprocalcontracts, in termination of contract, ie: dissolution and revocation,and then proves performance or failure of performance of this rulein revocation and dissolution and It shall study existence or nonexistence of automatic liability while failure of proof guarantee ofexchange in termination of mutual interest contracts.This article proves that dissipation of object of dissolution willcause rescission and dissipation of object of revocation, without anyeffect on validity of revocation, will cause civil liability ofpossessor.

In Islamic Jurisprudence, to reject the validity of Dimān malāmyajib (the liability of what is not obligated), caused to planextensions and subjects that has presented the diversity of opinionsamong jurists. Some of these extensions and subjects of discourseare so current and secular law to the extend that a group of juristsbelieve in the rejection the validity of Dimān malām yajib, wereplanning about to justify and find a state for it’s integrity by sendingthem out from the scope of extensinons in Dimān malām yajib.But some others, irrespective of current usage law and methods ofrationalist have issued an order to invalidity of some of thementioned extensions. The liability for objects of bail is one of thementioned extensions that jurists have diversed their opinions in it’sintegrity.Those who have voted to the validity rejection, know that as anextension of Dimān malām yajib and liable to it’s rejection proofs.In this essay pros and cons proofs in the integrity of this kind ofliability have been studied and firstly by the purpose of fortificationof the proofs of integrity believers mostly based on verses and

Permenant prohibition (Hurmat) of marriage is one of Islamicinstructions that the jurists have mentioned it as "causes ofprohibition" in their books and by which it is forbidden to marryparticular people for ever. In this case, laws of some Islamiccountries follow lawful commandments. By following ImamiehFegh (Imamieh jurisprudence) Iranian legislator have mentionedinstances of permenant prohibition of marriage with the title of"impediments to marriage". In this text, permanent impediments ofmarriage in Irania law (with a glance at ruling Fegh on Iranian law)in comparison to the law of Egypt has been studied. According tothe findings of this research, permenant prohibition of marriageenjoys a special position in the order of family rights because itplays a vital role in protecting families from collapse, keeping Traditions and on the other hand criticizing the pros’ proofsspecially through proving the correct ness of Dimān malām yajib, Ithas been endeavoured to define a criterion on strength of which canseek aremedy the diversity in other different extensions by makingclear precisely this kind of liability.

In Islamic jurisprudence giving obligation to drunkens acts andcorrectness of wordly and deedly acts and it's athari waz`y this acts,is an arguable subject between usulin and jurists. While usulian tolean on principals such as understanding abilities of duties fromrequired; and by comparison of asleep, neglegant and mad, agreewith not giving obligation to drunk acts and especially according tokhitab al-waz` view, by analysis problem to causation, intoxicatedshould be responsible for the results of their deeds and wards.Majority of jurists by refereeing to rules such as" al-aimtnae` bilakhtyarla yanafai al-akhtyar" related to delibratly drunk, say thatintoxication cann't be an abstacle to giving obligation and drunk andsober are equal in giving obligation. Deliberated drunk is someonewho without having one of the legal excuses such as reluctance,necessity, ignorance; deliberately drink with awareness.From the view point of majority jurists, such person for havingfreewill and awareness in becoming intoxication and also forcommitting legal prohibition, would be recompand to punishmentand results of his/her acts. Opposed to, undelibrated drunk whohis/her intoxication is allowable and it is legal excuses. Such person People healthy and their lineage pure and original. In this case,Iranian and Egyptian legislators by counting some of the instancesof permenant prohibition of marriage in law text, have beenemphasized on it.