فصلنامه جستارهای فقهی و اصولی
سال ششم شماره 1 (پیاپی 18، بهار 1399 )

The rule of discrimination in the authority of hadith is one of the rules mentioned by jurists, the various aspects of which are not well explained. In the present article, various perspectives on the rule in the two positions of affirmation and proof are examined. In the present article, it is proved that the rule of discrimination in authority is acceptable in terms of the proof, and as an affirmative rule, there are seven folded reasons for its validity. The rule applies to narrations that have a non-analytical implication and whose clauses are independent and have independent rulings, but if the implication implies an analytical or non-analytical continuum and has a plays a significant role in proving the principle or it mea at least be dubious. As the reason of conduct is non-verbal and plays an important role in proving the rule and determining its scope, this rule is not applicable in dubious cases. Such a detail accords with the seven folded reasons of rules authority as well.

The Rule of “Alwilāyatol Khāsah Aqwā minanwilāyatol ‘Āmah” is among the jurisprudential rules based on which some Sunni scholars have cited in secondary jurisprudential rules. By virtue of this rule, there is a relationship between the guardian and what is under his guardianship that enjoys such solidarity and dominance that in spite of his presence there would be no right of interference and oc- cupation for the general guardian in the realm of special guardian’s guardianship. In the present study, first, the hadiths cited by Sunni jurists have been analyzed and examined as evidence of this rule, then other arguments have been expressed as customary confirmations and some have been criticized. Likewise, this paper has stated and proved the rule of “Al-aqrabo Yamnaol Ab’ad”, a rule which is
stated by Imamiyah jurists on the heritage issue and no one has criticized this rule. Finally, the narrations of “Lahmeh” and “Assoltan walion man lā waliya lah” and the rule of “Al-aqrabo Yamnaol Ab’ad” have been the approved reasons for proving this rule.

Some believe that islamic jurisprudence before pay attention to human rights, Leads man toward task-oriented. They have raised the some misconceptions such as islamic jurisprudence is based on the task and dependence of Western legal system on the right and conflict religious should and shouldn't with the right-oriented. Accordingly, in this research we are going to analyze right-oriented or Task-oriented of the islamic jurisprudence from the perspective of Sunni scholars and Imams' jurists, especially Ayatullah Javadi Amoli as creator of religious though. The method of this paper is to analyze-description. The research data was collected by using the library. Research findings it shows that with combining the horizons of religious scholars and expanding and integrating their votes can be obtained to important subscriptions. They agree on the idea that that language of jurisprudence is not only the language of duties but at times the jurisprudence is to appear language of duty, is spoken in order to ensure human rights. In fact jurisprudential should ways to preserve and protect the rights and jurisprudential shouldn't shows security injury rights. Thus, if a careful look at islamic jurisprudence, don't see unless the rights and interests and with this attitude we can say all tasks will return to rights.

The common discourse on usury is its definition in the form of borrowed, transactional, and ignorant usury. In the Islamic banking system, relying on this discourse, any doubt of contracts being usury- like are denied, because there is no transactional usury in banks, and the loan includes a small proportion of the bank facilities, which is typically a zero-interest loan. Likewise, the penalty for late payment is also received in the form of a liability, which is due to the breach of the debt due to the payment of the debt at maturity, and not against the extension of the deadline for ignorant usury. However, it seems that this discourse is faced with the  sophistication of the problem of concept to instance as the Holy Qur’an mentions the ruling of usury not its definition and instance, and in the narrations,the ruling of some instances is also stated. The raised question here is that what is the meaning and nature of usury? What are the commonalities for the mentioned instances for usury? If usury is limited to borrowing and transactional usury, why are some other activities, such as the sale of the object, etc., prohibited under the title of usury? Using an inductive and analytical method for analyzing the instances, it is concluded by the author that usury has a comprehensive meaning that does not include all existing and new instances and loan and usury transactions are two clear instances of this concept. The ruling of usury is mentioned in the Qur’an which includes any instance that this meaning is applied in. Usury means the required extra amount of the given money in return for assigning a time for securing the primary and secondary properties which is confirmed by traditions and historical evidence. This concept is observed in all banking contracts.

One of the classifications of contacts is its division to the binding and permitted. Dissolving the obligatory contracts is not possible, save in the cases the option is proved to one party or both of them or they agree in cancellation of the contract. The binding contracts are also divided to optional and non-optional obligatory contracts. Iran civil code has remained silent in the (in-) feasibility of mentioning the option word in endowment contracts. Thus, there is controversy among the lawyers in this case. Likewise, there is disagreement in this regard between Imamiyah and Sunni scholars. Some have deemed the issue of option correct in the endowment contract while others have deemed such an option null and void but the contract is correct per se. It is concluded in the present paper that the condition of option in the endowment contract is correct and civil code’s silence in this respect is due to its authenticity on the part of the law-maker.

The institutions of insolvency and poverty have been investigated in Imamiayh jurisprudence and other Islamic sects. In the legal literature of Iran there were three institutions of insolvency, poverty and bankruptcy before 1934. The law-maker has also mentioned these three institutions in Iran’s Civil Code. After the dissolution of insolvency institution in 1934 and the sameness of this concept (insolvency) to poverty, this question was raised that how we should interpret insolvency institution in the present civil code? The signif- icance of the issue is that in many legal articles the law-maker refers to the title of insolvency and the judicial procedure faces with problems in its interpretation, namely with respect to the article 380 of civil code, and consequently, the issue of insolvency option regarding this problem is evident. The objective of this paper is to present a correct interpretation of these legal codes based on legal and jurisprudential sources, although legal doctrine has adopted two general approaches including replacing insolvency with poverty and replacing bankruptcy with poverty in interpreting this legal institution after its dissolution from legal literature. The authors have concluded that the correct approach is interpreting legal articles with respect to jurisprudential principles. Therefore, revisiting the concept of insolvency and poverty is intended so that the main question of the study is responded.

Jurisprudential texts have frequently referred the two principles of correctness and corruption in transactions without clarifying the scope and application of these two principles in a disciplined and lucid manner. This ambiguity has led to confusion of the framework and functions of Articles 10 and 223 Civil Code in legal texts. The principle of correctness in topical misgivings could be prioritized to the principle of corruption but one cab bot resort to the principle
of correctness to exclude the principle of corruption. As the transactions in ruling doubts are custom-oriented, for excluding the corruption principle, one can investigate the opposing reasons to the general and absolute indications of transactions, for instance, the principle of fulfilling the contracts is resortable and the correctness of the transaction is proved through the afore-mentioned verbs reasons. Clearly, given the legitimacy and legality of a contract is proven, it is binding with reference to the article 10 of civil code. Such legitimacy is proven if the reasons are investigated and no opposing reasons are proven referring to a specific, general, or absolute reason, albeit it rests on intellectual’s conduct and the peoples’ intention to legitimize it is not sufficient. The present paper is to sate, analyze, and criticize legal and jurisprudential texts to determine the scope of these two principles of correctness and corruption. Consequently, the exact avenues of the articles 10 and 223 of civil code are determined.