نشریه مبانی فقهی حقوق اسلامی
سال سوم شماره 1 (پیاپی 5، بهار و تابستان 1389)

Contract of Istesna’ is not new a contract. It has been longdiscussed by great juristic scholars dealing with its rulings. SheykhTusi in Al-Khelaf and Al-Mabsoot, Shafe’ei in Al-Umm andSarakhsi in Al-mabsoot have discussed about Istesna’ and it’s licitor illicit position, although in the past its applications were limitedto instances such as orders for making boots, shoes and iron, zinc orwood utensils.In this paper, after explaining the meaning of Istesna’, this contracthas been recognized as an independent one. Then, after introducingIstesna’ securities, jurisprudential and legal issues on the matter andon the relations in trading stock, bonds and institutions in relationwith issues of contract of Istesna’ and jurisprudence of selling havebeen studied. It has been tried to suggest solutions for challenges inthe relevant field.

The following of religious commandments after prudence andcorruptions. The prudence means a beneficial issue which producesspiritual or material advantage which is the opposite point tocorruption. Inreletionwiththe followingofreligious commandmentsofter prudencethere are two major principlesA- The thought of denial which is attributed to Eshaere whobelieve that no prudence or corruption etists inherently in the matterwhich is followed by the religious commandments, but thecommand or for bidding of the leg is lator produces prudence orcorruption in the actions.B-The thought of proving which is sometimes attributed to all therationalists or some of the most famous of them , believe that divinecommandments.Follow prudence and corruptions which already have produced inthe actions, although not understandable for us.

Lease of premises is a contract have a lot of application in society.inaccordance with existance of some practical results on divisionbetween translative and promissory theory of the lease :such aspossibility of possession of interests to others by lease holderanalysis of the translative theory-that is an accepted theory byfamous Islamic jurisprudents and civil law- is nessacery.

Permission (Eznieh) contracts are important parts of legal deeds thatare used in a vast level of social relations.Familiarity with these contracts’ nature and the investigation ofexisting disagreement about their nature are necessary with regardto extensive use of these contracts. Because legal effects andcommandments of these deeds have direct relationship with theirnature. Disagreement about the nature of permission (eznieh)contracts results from different attitudes about the nature of thecontracts and similarity of these contracts to permission. Somebelieve necessity is one of contracts’ components. Accordingly,permission (eznieh) contracts are not followed by necessity so theyare not considered as contracts and their nature are more sililar tolegal quality of permission. In contrast, some believe necessity isnot a valid component of the contract and the contract is a reversiblewritten promise. These people believe permission (eznieh) contractshave contract nature.On the other hand, there is not enough discussion about legal andreligious sources of permission and its meaning. The effects of thislegal quality has been emphasized. In this writing, we offer differentdefinitions of contract and permission in religion and law. Then, weinvestigate the nature of permission (eznieh) contracts with regardto the definitions. In the investigation of permission (eznieh)contracts’ nature, legal and religious definitions of these contractsand their differences with legal quality of permission areconsidered

People’s possessions in terms of others’ real properties are either onguarantee basis or on trust basis and trust possessions are eitherproprietary or religious. In several cases due to incidences likeinsanity and death in authoritative contracts, proprietary trustpossession turns to religious one and this conversation of possessionhas consequences on the parties’ relationship which have not beenexplicitly mentioned in the Civil Code and legal experts andresearchers have not noticed them yet. Since legal orders arelacking here and Civil Code is defective, by virtue of principle 167of the Constitution, with reference to valid jurisprudential texts, theresearchers not only stipulate evidences of trust possessionconversion, but also count its effects.

The usury is prohibited in Islam. This prohibition be aimed at ofreal persons; because they have not any religious obligation;therefore the prohibition and obligation do not aim at them andbecause of the government is a legal person its bargains topicallyare out of prohibition of usury and in addition the governmentproperty including cash belongs to the people and considers ascommon property and when the government loans it to the people infact loans peoples property to themselves and therefore if it takesany gain there is not any problem.

Abortion is considered both as a crime and a social necessity (atleast according to those committing the termination) which roots insocio-cultural and politico-economic conditions. However, abortionmight become medically inevitablety, since continuation of thepregnancy may hurt fetus, mother or both of them. Beforeensoulment, if the mother’s life is in dander, all Sunni and Shiafaqihs (jurisprudents) permit abortion. In case of hardship for themother, most of the faqihs allow it. Some Sunni faqihs have gone sofar as consider it mobah (halal).In case of ensoulment (beginning of human life in the fourthmonth), traditional Sunni and Shia faqihs do not permit abortion,while some of the contemporary ones authorize it in some specialconditions. My article will focus on the case of danger for mother,which, in my opinion, is permitted, as a case of legitimized selfdefense,by Sharia and common sense. In case of conflict betweentwo wajibs (obligations), mother has the right to protect herself. Soabortion in this case is authorized, and the physician and the nursewill have no civil and penal liability. Although some faqihs do notpermit abortion in such cases, some others, with special emphasison common sense, allow it.