فصلنامه فقه
پیاپی 117 (بهار 1403)

value of the exchanged items leads to the contract being concluded in a differential manner, and the amount of the exchanged items is not equal. According to the agreed principle among Shia jurists, in these differential contracts, if the exchanged items are of the same class measure or weight, this contract is considered "usury" (riba) and is therefore invalid. However, in addition to this, some jurists have proposed a principle regarding contracts where the exchanged items, although not measurable or weighable, are still considered to be of the same genus. They have stated that such contracts can only be valid if the exchange is done in a cash manner. Therefore, the question is whether this contract can also be valid in a long-term form (deferred or forward), or can it only be valid in a cash transaction? This research, using a scriptural-revelatory method and analytical-critical data processing, has reached the conclusion that there is not sufficient evidence to require the condition of being a cash transaction for the validity of this contract. Rather, in accordance with the general principles of the validity of contracts, the ruling should be that this contract is valid even in a long-term (deferred) form. Therefore, one cannot, by relying on the presented evidence for invalidity, consider the general principle of the validity of sale contracts in the Civil Code, which also includes this type of transaction, as invalid according to Article 4 of the Constitution.

One of the conditions for implementing retribution (qisas) for murder, without which qisas will not be applied despite the occurrence of intentional murder, is the equality of religion between the killer and the victim. Based on this, a Muslim is not subjected to retribution (qisas) for killing various types of non-Muslims, but the reverse is possible. However, in many cases, we observe that the perpetrator injures the victim, and this injury leads to the victim's death. In the period between the injury and the resulting death, one of these two individuals changes their religion. The fundamental question now is whether "the time of the crime" or "the time of qisas" is a condition for the religion equality between the killer and the victim? Most jurists consider "the time of the crime" as the criterion and have advocated against qisas in such cases. However, some jurists like Sahib al-Jawahir consider "the time of qisas" as the condition. Based on this, the current article, using a descriptive-analytical method, argues that claiming equality at the time of injury without evidence is baseless, while discussing the unity of the disbelieving person and exploring arguments from both sides, aligning with Sahib al-Jawahir's stipulation of equality at the time of qisas. Furthermore, this research innovatively includes references to evidence based on the consideration of "the time of qisas" in other hypothetical cases, and presents discussions on another hypothesis that regards "the time of the crime," highlighting debates surrounding it. Finally, the position of the legislator regarding the aforementioned issue has been examined, and appropriate suggestions have been proposed to address legal gaps.

One of the issues regarding fasting is the fasting of elderly individuals. Various scenarios have been proposed, including ability, inability, hardship, and difficulty. In the cases of hardship and difficulty, there are different opinions among jurists. This research undertakes a jurisprudential examination of these opinions and their evidences. Based on the research findings, if fasting involves hardship and difficulty, two scenarios are conceivable: First, if fasting entails harm, it is not permissible due to the rule of no harm (Qa'idat La Zarar), the Qur’anic verse, and the fundamental principle of the rule of no hardship. Second, if fasting does not entail harm, then two opinions among jurists are discussed in this scenario. Some jurists hold that this kind of fasting is valid (right), while others explicitly state that fasting is invalid (batil) and prohibited (haram). Both opinions have provided evidence to support their claims. Based on the research findings, the view that fasting is invalid (batil) and not permissible is prioritized. This study, using a descriptive-analytical method, examines the opinions of jurists and their evidences.

t is the existence of a right or at least the existence of a cause leading to a right. Based on this, providing security deposit for a debt that will arise in the future, such as a loan to be received in the future, is contentious, and renowned jurists do not accept this type of security deposit. The main issue is whether the view on the invalidity of providing security deposit for future debts is based on established and irrefutable evidence, or if there is room for questioning the validity of those arguments. Furthermore, considering the dependency of the security deposit on the debt, the existence of a debt is necessary for the creation of a security deposit. Studies indicate that there are two main perspectives in this regard: the first perspective confirms the invalidity of providing security deposit for future debts, while the second perspective adheres to the principle of security deposit for future debts and considers it valid. In civil law, there is also no explicit clarity on this issue. Judicial practice also does not accept security deposit for future debts by adhering to the opinions of most jurists. After critically examining the arguments and evidence, the research concluded, using a descriptive-analytical approach, that since the goal of law is to preserve social order and justice, it must align with contemporary social needs. Therefore, in the context of security deposit, considering their credibility, customary practices, and rationality, there is no justification for requiring proof of the debt. This issue falls under general principles and applications of contracts. Therefore, security deposit for future debts, where justified, is considered a valid principle in the legal system based on the mutual consent of the parties involved. Because individuals need security deposit for their transactions in their business relationships to ensure peace of mind. This not only maintains contractual balance and stability but also enhances investor confidence.

Today, one of the issues in academic and public arenas in Iranian society is the methods and types of selecting punishments for the crime of moharebeh (refers to a specific crime in Islamic law, often interpreted as waging war against God or spreading corruption on Earth). The legislator, during the process of law-making after the Islamic Revolution of Iran, has shown a greater inclination towards the discretionary view in choosing among the four types of punishments for moharebeh in the laws. This article, using a descriptive-analytical method and focusing on the verses of the Qur’an and the narratives concerning moharebeh, criticizes the legislator's approach. It emphasizes that the opinion advocating for order or proportionality between the crime and the punishment for moharebeh can be inferred from Qur’anic and narrative evidence and is, in fact, consistent with the Qur’anic verses. The most important achievement and innovative aspect of this article compared to other writings is, firstly, that the apparent meaning of the verse on moharebeh concerning discretion is disputable. Some prominent scholars, including Qutb al-Din al-Rawandi and Allameh Helli, believe that the verse indicates a sequential order. Secondly, multiple verses of the Qur’an support the principle of proportionality, which clarifies or removes any ambiguity from the verse on moharebeh. The verse on moharebeh cannot be interpreted contrary to the apparent meaning of numerous other Qur’anic verses. Thirdly, the verses indicating the necessity of proportionality between crime and punishment are exempt from any limitation or restriction. As some commentators explicitly state, the lack of proportionality between crime and punishment is considered injustice, and injustice is both rationally and legally forbidden (haram). Fourthly, the verses and narratives indicating the necessity of proportionality between crime and punishment are explicit texts (nass), whereas the verse on moharebeh (assuming it indicates discretion) and the narratives indicating discretion are apparent (zahir); and explicit texts are prioritized over apparent ones. Fifthly, the desirability of adhering to proportionality between the crime of moharebeh and its punishment is unanimously agreed upon by all jurists, and none of them consider a ruling that observes proportionality between crime and punishment to be contrary to Sharia. In contrast, failing to observe proportionality in moharebeh is, according to the most jurists’ opinion, against Sharia.

The common model in jurisprudential subject studies is one-dimensional, using the method of describing and analyzing the inherent elements of the subject to discover the corresponding jurisprudential title. While this method is acceptable for identifying cases of specific jurisprudential titles, it is undeniable that the influence of other factors, such as the effects and consequences of the subject, is significant when dealing with new complex issues. As a result, limiting the analysis to the inherent elements of the subject leads to deficiencies in the subject studies process. Therefore, it is necessary to strive for a model that can present all dimensions affecting the application of jurisprudential titles to subjects, allowing for the discovery of the full range of jurisprudential issues and rulings related to the subject by considering all relevant aspects. The importance of the present research lies in its dependence on the mentioned model for jurisprudential inference in novel issues, highlighting the need to determine the duties of the nation and the government in dealing with new issues. The aim of the research is to empower jurisprudence in solving new issues, to pave the way for a comprehensive design of the system of issues, and to prevent weaknesses and deviations in deriving rulings for novel issues. This research is conducted using an analytical-descriptive method, utilizing transmitted and religious sources and the jurisprudential method of ijtihad. Its novelty lies in providing a comprehensive model for jurisprudential subject studies and a model for designing the system of issues for novel subjects. The result explains the limitation of the influential dimensions in jurisprudential rulings to three aspects: the inherent nature of the subject, the objectives of the actor, and the effects and consequences of the subject. Consequently, to determine the jurisprudential ruling on new subjects, the correspondence of relevant jurisprudential titles to all three aspects of the new subject must be examined, and the jurisprudential ruling for the new subject should be inferred based on the results.

Reason (Aql) has been recognized as one of the sources of inference of rulings by the Islamic jurists. Reason has been used both independently and as a tool for understanding in the service of other sources of jurisprudence (fiqh). With the emergence of the Akhbari school of thought, the prominent figures of this school, such as Astarabadi and Bahrani, emphasized the notion of the revealed and prescribed nature of legal rulings, the inability of reason to comprehend the interests and harms, and the lack of necessary connection between the perception of inherent goodness and badness and the obligation and prohibition (wujub and hurma). Thus, they called into question the use of reason for inference of rulings. In this article, through a case study of certain branches of Islamic jurisprudence, it was demonstrated that the approach to reason in jurisprudence was more prevalent in various chapters of jurisprudence (both in acts of worship and in transactions) before the Akhbaris. However, jurists after the Akhbaris have paid less attention to reasoning. Furthermore, jurists after the Akhbaris have also acknowledged the insufficiency of the ruling of reason in numerous cases, whereas such expressions are not observed in jurisprudence prior to the Akhbaris.