نشریه آموزه های فقه مدنی
پیاپی 26 (پاییز و زمستان 1401)

The issue of Islamic government and the right of governing and the criterion of legitimacy has been one of the most controversial topics of the Islamic society during its fourteen centuries period. Since such issues cannot be examined regardless of the rule of the Prophet of Islam (pbuh) and his political tradition, therefore, many religious and political scholars have been forced to examine his rule in Medina in issues such as Imamate, Caliphate, government, etc., but they have not been able to reach a unified consensus regarding on its religious or political nature. It seems that in order to solve this problem, first of all, the question must be answered which political, intellectual or divine mission was the result of the government formed in Madīnat an-Nabī (lit. 'City of the Prophet' or 'The Prophet’s City') after hijra? Naturally, as a result of the discussion, any of the aforementioned forms can play an important role in the political functioning of religion. It is no longer possible to deny the political authority of religion and the Prophet (pbuh), as well as the necessity of continuing this authority for according to the third assumption. However, it is possible to dispute the political authority of the religion and the person of the Prophet (pbuh) in the first and second assumption. The author believes that the Prophet (pbuh) built the government according to God’s command (religious duty), and the intellectual and political necessity was merely a confirmation of the Qur'anic proof of the sharīʿah (God’s law) necessity of the Islamic government, and the author examines this issue in this article by an analytical method.

The nature of allocating Anfal (Arabic: الانفال, al-ʾanfāl; Earnings, Savings, Profits, Public domain) and how they are owned in jurisprudence and law are very important in preserving public wealth and property. The conditions and requirements of the time and place of Occultation (Arabic: غیبه, ghayba) gradually made the jurists to equate the governing nature of Anfal by arguing some reasons, and to consider the personalization of the ownership of the people of the society in the use of Anfal and public property, and their fatwā (Arabic: فتوی; plural fatāwā فتاوی, issuance of a religious verdict) should be noted that there is no need for permission from the qualified jurist of the and Islamic sovereignty to acquire Anfal in Occultation. Continuation of such a trend has many problems and undesirable consequences arise regardless of the governmental and civilizing role of jurisprudence for society in the present time and cause the destruction of many wealth and public property, the increasing destruction of the environment and disruption of the social system. This article has tried to explain the tendency of jurists and authorities to personalize possession of Anfal in the age of occultation and examine its consequences based on descriptive and analytical methods of the documents, and based on evidence; such as the principles of religion, the foundation of wisdom, the nature of Anfal, and the secondary rules of opinion appropriate to the conditions and requirements of the contemporary era; That is, the sovereign ownership of Anfal in the era of occultation and the necessity of obtaining permission from Islamic sovereignty and a comprehensive jurist should present the conditions for the ownership of Anfal and public property along with its foundations and evidence.

The financial possessions of bankrupt individuals are not legally and jurisprudentially valid in order to protect the rights of creditors. If confession as informing against a person that can have financial effects, done by the bankrupt, its credibility is challenged because of the impact has on creditors. A confession in a criminal action may be made regarding the financial liability resulting from the crime, which the legislator of Islamic punishment in Article 170 has considered it as invalid and if it is based on punishment is valid. The sources of Imāmiyya (Arabic: إمامیه) jurisprudence have been examined in the present research by analytical and descriptive method, and it has been concluded that the bankrupt’s confession is valid in relation to the confessor, both in criminal matters and in the financial liability resulting from the crime, but in relation to the rights of creditors, although the validity of the confession is based on stronger foundations, but the famous jurists generally do not consider it t for the participation of the beneficiary of confession (Arabic: مقر له) with the creditors in the bankrupt’s existing property. The same ruling is also valid regarding the proved financial punishments such as blood money and fines, but there is no obstacle to the effectiveness of the confession regarding the sanction of criminal non-financial executions.

Governments and companies use financing tools to expand their economic activities. Islamic securities were designed by Islamic thinkers according to Sharia (Arabic: شریعه, Romanized: sharīʿa, religious law) restrictions on the use of conventional financial instruments. Lease bonds are currently distributed on the basis of the physical property (tangible asset) of financing applicants. The subject of this article is to investigate the distribution of lease bonds based on shares as an intangible asset. What is challenging about these securities is the jurisprudential-legal explanation of share renting. First, it is necessary for this purpose to analyze the possibility and accuracy of the stock lease according to various analyses of the nature of the shares and then, include the benefits and interests of shares that can be transferred in the form of a lease contract. The stock lease in this paper is discussed by descriptive-analytical method. Accepting share rent among various analyses of the nature of stocks based on the opinion of famous jurists seems to be facing challenges, but according to the view that the company is considered as a constructive possession and considers the share as a joint part of that property, the share lease can be considered correct.

Social phenomena have arisen with the development of previous phenomena. The legal system and political force are none alone accountable for all social realities and the foundations of the law are formed in the main roots of society and law cannot be analyzed separately from society. The issue of the land tenure is the phenomena that occurred in Iran after the Islamic revolution in the field of legislation which is a kind of rush to provide a solution and respond to the expectations of the revolutionary people by relying on jurisprudential and revolutionary views. The last result of the reasonable men to experiences and by jurisprudence for the benefit of some people in society was the new legislation. The challenges facing the fundamentals of the developments of land tenure have been the reason of discussion in many issues and the records of the subject should be reviewed and adapted in order to analyze it by jurisprudential and legal system. These challenges by identifying the foundations of the developments of land tenure are analyzed in this regard and the goal is not merely to discover jurisprudential rules as the basis. This article analyzes the hypothesis of the absolute impact of revolutionary views on expropriation [dispossession] of private ownership and iqta (Arabic: الإقطاع, Romanized: iqṭāʿ, sectorization) of public property. The result obtained in the end is that it shows the influence of revolutionary views along with social, economic and political conditions on the developments of land tenure after the Islamic revolution.

Some of these diseases in the present time, can be diagnosed at the time of pregnancy to a certain (reliable) extent with the help of medical tests. The difficulty of raising such babies, along with the primary prohibition of abortion, places the legality of incomplete abortion (defective abortions) before researchers of jurisprudence and law and most of the contemporary jurists have accepted the legitimacy of incomplete abortion to some extent and have justified it by referring to the rule of negation of impediment (Arabic: لا حرج, no difficulties) and the result that also obtained in the single-clause bill approved in 2014. The new mentioned issue has been examined from a jurisprudential point of view in this article, and the arguments of the jurists in this field are from the point of view of minor premise (the difficulty of continuing the pregnancy), major premise (the ability of the rule of impediment (Arabic: لا حرج, no difficulties) in allowing abortion) and thematology (vegetative nature of the fetus) is challenged and obligation to the legality of abortion in the mentioned case has foundations, functions and requirements that even those who say it cannot accept.

The civil law has not taken any action regarding the sanctity of the condition of legal omission, and this has caused a difference of opinion among the jurists. Some have commented on the annulment, some on the validity, and others on the invalidity of the legal act of impermissible (forbidden) act. This research tries to strengthen the recent theory and for this purpose, suggests the theory of arbitrary (contractual, credit) coercion. According to this theory, the sanction of the person who is responsible to perform a condition which is against him (Arabic: مشروط علیه) and he/she violated that condition in this type of condition, according to the primary rule is compelling and the impossibility of the coercion (compelling) of the person who is responsible to perform a condition is not imagined; because, the coercion (compelling) of the person who is responsible to perform a condition is arbitrary (contractual), which means that the legal act of impermissible (forbidden) act is concluded in a contractual way. In other words, coercion must be of the form of the desired act, and since the mentioned act is arbitrary (contractual, credit), the manner of coercion must also be arbitrary. This coercion (compulsion) without the need to perform any material or legal action is done spontaneously. Coercion has been realized, when, there is no effect legally on the person who is responsible to perform a condition which is against him and promised it, and there is no need for any further action. Accepting the validity of the forbidden legal act, in addition to the inconsistency with the intention of the parties, means the permission to the breach of contract and the effective termination of the contract. The theory of nullity is also incompatible with the foundations of our legal system.

According to the well-known (dominant) views of jurists, abolishing of the right not to accept the occurrence (contingency) of a defect to the customer has stipulated in the third clause of article 429 of the Civil Code and has not limited it to non-extinction (non-extinguishment) of defect. Whereas some jurists believe that if the defect is removed by the customer, the right of rejection will still be reserved for the customer. This research, which has been conducted by descriptive-analytical method, shows that the Mursallah (Arabic:مرسله , meaning: sent or transmitted, tradition with no chain of transmitters or with an incomplete one) of Jamīl b. Darrāj (Arabic: جمیل بن دراج) is the only scriptural proof (traditional proof, scriptural evidence) for being abolishing (waiver, abrogating), which Akhund Khurāsānī (Persian: آخوند خراسانی) rejects the adherence to it and believes that being in abolishing (waiver, abrogating) is in order to observe the status and state of the seller. Therefore, there is no way to use the narrations mentioned in the assumption of compensation of damage. The occurred defect is not relevant for the extinction (disapproval) of the right of rejection, but the criterion is the cause of harm to the seller and not respecting his/her right, so it seems that if the occurred defect is resolved, the right of abolishing will not be revoked, and the mentioned article needs to be amended (corrected).

Money creation (money issuance) is one of the most important economic phenomena that leaves many effects on the economy. In order to grant loans to bank customers, money or credit based on which banks create credit from “nothing” in the account of the loan applicant is created. Although this phenomenon has also supporters, but this same group also admits and acknowledges the destructive economic effects of money creation. Its most important effects include economic instability, unbridled inflation, discrimination and violation of justice. This issue can be considered as a matter of concern affecting the Islamic society because there are few people who have not applied for a loan from banks. This phenomenon from a jurisprudential point of view can be considered as an unlawful ownership (in Arabic: اکل المال بالباطل, unjust enrichment); because, the bank acquires property (tries to make money) instead of “nothing”. On the other hand, the prohibition of the abuse of the right, which is based on the evidence of the rule of prohibition of detriment (in Arabic: لا ضرر, principle of harm), implies the prohibition of the creation of money. Banks have the right to loan their customers money and this right is considered by law and Sharia (Arabic: شریعه, Romanized: sharīʿa, religious law) for them, but they have made this right an excuse for their profiteering (mercantilism, trade) and causing harm (damnification) to the whole society, which is ruled to illegitimacy on the basis of the evidence of prohibiting the abuse of the right and principle of harm. It should be finally noted that the criterion stated in some ḥadīth (pl. aḥādīth, literally means talk or discourse, narrations) for the unlawfulness of usury, which is the earning of profit without anything in return (equivalent), is equally true about the creation of money, and it is possible to generalize the prohibition of usury by conclusive rectification of the effective cause (Arabic: تنقیح المناط).

Although the determination of dower (marriage portion, marriage settlement) in a permanent marriage contract is not a condition based on verse 24 of Surah An-Nisa (in Arabic text: النساء‎), traditions reported by numerous authorities (successive widely transmitted) and the consensus of jurists and marriage without mentioning the marriage portion is also a completely valid contract, but it is assumed sometimes that not only the dower is not mentioned in the text of the contract, but marriage is conditioned to absence of marriage portion and the lack of marriage portion is conditioned by one of the spouses or both. Now the question is: What is basically, the ruling of the condition of absence of marriage portion in marriage, and consequently, what is its effect on the validity and invalidity of the marriage contract itself? The present article, using descriptive-analytical method, has tried to achieve the conclusion that the condition of absence of marriage portion in marriage is correct or, at least, can be used as a presumption, despite the famous jurisprudential opinion that such a condition is invalid, while criticizing and rejecting the evidence of the ruling, such as verses and ḥadīth (pl. aḥādīth, literally “talk” or “discourse”, narrations), in addition to weakening the famous opinion and this is the main finding of the research.

Validation of the unconscionable (imposed) conditions is the examination of a new form of contracts in which one party has superior or exclusive powers that prepare the terms and conditions of the contract and the other party is forced to accept it without having the right to negotiate. The current research investigates the nature, basis and validity of unconscionable conditions in these types of contracts by comparative-analytical method. The findings show that some of the unconscionable conditions do not have the attribute of unconscionable, therefore they are valid. Egypt’s legislator in Article 149 of the Civil Code legislates for conditions and unconscionable exposed contracts: “... The judge can equate the contracts containing unconscionable conditions or exempt the weak party from their implementation...”. Some jurisprudential rules in Islamic jurisprudence and legal principles in Iranian law have such capacity that they can be considered as evidences of support for the weak side of the contract in these types of contracts. In addition, Iran’s legislator has shown a willingness to support the weak side by enacting some legal articles. If the imposed conditions are unconscionable, judges can also equate (amend) them by using accepted jurisprudential rules and legal principles and therefore, it is inevitable to anticipate the legal provision in Iranian civil law in order to prevent the issuance of different judgments in this regard.

According to the rules and principles of civil liability, no damages should remain unclaimed. Where a person has the intention of an action, whether he intends to have a result or not, he is a guarantor in any case, but where a person without complete will and without the intention of the action causes it only for reasons such as hand vibration or instinctual movements while sleeping. The question is whether the guarantor can be changed and the responsibility should be shifted to the government and the treasury, despite the certainty of the guarantee as a status sentence.In this article, exemption without intention to act as a guarantee in inflicting bodily harm due to the lack of causality has been proven as the most important element of civil liability. And secondly, according to one of the channels of payment of zakat, which is "for the sake of God" and the jurists have defined it as payment for the "public benefit of the Islamic society", the guarantor of the payment of personal damages without the intention of action.