پژوهشنامه حقوق اسلامی
پیاپی 34 (پاییز و زمستان 1390)

No state or political system with legal, social, political, cultural and economic relations can be found in the world in wich the hierarchy of the sources of law is transparent and applied in not that system. The System of the Islamic Republic of Iran is no exception to this rule. The study of such a system with this approach necessitates concentratingon an essential feature i.e. its being Islamic in nature and structure. The above-mentioned feature has given rise to certain requirements in this legal system and has created some changes in the traditional system of the hierarchy of the sources of law according to which the constitution is higher than ordinary law and the latter is higher than executive law. On the one hand, the Shiite jurisprudence has considered the ruling of the Islamic ruler the highest binding source in the Islamic system, and numerous Articles of the Constitution including Article 4 have regarded the Islamic feature of the law as the necessary condition and even in some cases the sufficient condition for its approval and application. In addition, Article 57 of the Constitution has recognized the absolute guardianship and the Imamate of the community which brings to mind the unconditional Superiority of the commands of the Leader. On the other hand, some legal principles and international rules have emphasized the inalienable superiority of the constitution. In this context it seems that in view of the Islamic nature of the political system in Iran, we can generally say that the commands of the supreme leader are the highest source of law in the IRI. However, if issuing commands as a special stated privilege is delegated in the constitution to the leader, he should observe in it the constitutional framework. Thus the level of his commands in this context is lower than the constitution unless there is a proof to the contrary.

The history of the two institutions of law and morality and the relation between the two is the same as that of the life of human beings. However, this long standing relation has not been an obstacle to the existence of numerous interactions as to the type and extent of this relation, nor to achieving a sustainable agreement between the thinkers in these two fields towards regulating the relation between them. In spite of the commonalities between law and morality in the fields of objectives, and domain, they differ seriously in the same fields requiring certain mechanisms towards their realization and materialization. The main views of thinkers in regulating the relation between these two fields are the maximal and minimal support of morality by criminal law. In other words, after recognizing the overlapping points, and in establishing a proper relation towards solving the problem in cases of overlapping, some thinkers hold that criminal law has a maximal support of morality considering it general and comprehensive. In contrast, another group holds a minimal support of morality by criminal law. They confine it to the inevitable cases and approve alternative mechanisms. However, we can propose an intermediate theory distinguishing the affirmation stage from verification one. In case of affirmation, they hold a maximal support of morality by law, and in case of verification they hold a type of support according to requirements and conditions drawn by the ruler or the leader. The different mechanisms concerning the offender are also involved here. This is the very theory of Islam based on the rule saying: discretionary punishment is prescribed for any forbidden act.

Nowadays guaranteeing the repayment of a debt by the debtor is of high significance for the promisee. One of the mechanisms towards such a suretyship is contract of guarantee. Guarantee is a contract between the guarantor and the creditor i. e. one to whom the guarantee is given. The guarantor promises the repayment of the debt and the one to whom the guarantee is given agrees with the extinction of his claim upon the debtor. As a result of this mutual consent, debt goes out of the obligation of the debtor and is transferred to the guarantor. Occasionally it is possible that a single debt is guaranteed by more than one towards further guarantee of the collection of the debt by the creditor. The plurality of suretyship is possible in different ways. The present article is an attempt towards studying the validity of various forms of plurality of suretyship for a single debt in the law of Iran and the Shiite jurisprudence.

Article 167 of the Constitution devised towards removing the flaws in the legal system confronts numerous theoretical and practical obstacles in its implementation. On the one hand, the way of access to the authoritative sources and legal opinions introduced in the Article is ambiguous and on the other hand, the possibility of benefitting from some of these sources is under question for some judges. Besides, there is no ruling for many new arising questions of law due to their unprecedented nature in jurisprudential sources. In case we find a ruling for them in these sources in spite of all difficulties, the diversity among religious scholars would hinder the creation of a single and organized system in the judicial system harming the foundations of the society’s confidence in the judiciary. Presenting some of the obstacles before this article, we would try- as far as these Articles are valid- to apply certain interpretive methods towards reducing the domain of their implementation and resolving their problems. The practical approach of the courts i.e. their little interest in referring to this article, particularly in criminal affairs, is also a witness to this fact.

Sexual acts beyond the prescribed limits are considered immoral in different societies, and members of society usually resist against them. Indicating the proper lifestyle in different aspects towards reaching perfection, the religion of Islam has prescribed certain punishments for these heinous acts. Two examples of the heinous acts are adultery and rape. One of the issues raised in the ways of establishing the offence of adultery is neglecting the rights of victims in rape. The reason is that the divine legislator has made the ways of establishing this offence extremely hard due to preservation of certain interests in the life of human beings. Thus the rights of victims of rape are trampled. Studying the Islamic procedure in establishing crimes committed against God and those committed against people and clarifying the concepts of adultery and rape based on Islamic traditions, the present article explains the difference between them and argues that following this distinction, the process of establishing adultery which requires mutual consent is different from rape.

Payment of debts by the third parties is a phenomenon frequently occurring in the realm of law and financial relations of people among themselves. The third party occasionally does not have any legal or religious responsibility from the promisor for fulfillment of obligation. Then other motives such as benevolence, or satisfaction of some joint interests with the debtor stimulates him into this act. However, sometimes although the third party is not the principal and actual debtor, he is obliged to pay the debt to the debtor according to the law. The fulfillment of obligation by the third party is essentially a permitted act except in cases in which the personal payment of the promisor is stipulated. The criterion towards recognition of the stipulation of the personal fulfillment of the promisor is its explicit mention in the contract, or the prevailing custom and usage, or the social interests following the personal fulfillment of obligations. It seems that the right of the reference of the third party to the debtor does not follow the traditional rule mentioned in Article 267 of Civil Law any longer. It follows a new rule based on which -if a particular law has not issued the permission of the fulfillment of debt by the third party and then his referring to the debtor, the third party has not been authorized by the debtor, and the payment of debt by him is not considered an example of undue and unjust fulfillment – the third party has the right of referring to the debtor on condition that he is authorized by the debtor towards payment of the debt. However, if the third party has fulfilled the obligation based on one of the three above mentioned cases, he has the right of referring to the debtor even without being authorized by him.

“Condition” means being obliged and bound. In its technical sense, it is an obligation within another contract. The contents of the condition are mentioned explicitly or otherwise in the text of the contract. The former is called an express condition and the latter an implied one. Different types of implied conditions are as follows: essential term, customary term, legal term, mentally established term. There have been investigations and discussions on various kinds of implied term. However, the mentally established condition has not been investigated yet. In contemporary times however, some jurisprudents have taken this type of terms into account in order to explain certain legal issues. However, there has not been any study or investigation on the nature and concept of this condition, nor on the foundation of its validity, nor on its exact classification, extensions and effects in jurisprudence and law. The outcomes of this research indicate that mentally established condition is one established in the minds of the parties to the contract. It is a concomitant of the contract although the parties to it have not had any actual attention at the time of conclusion. Mentally established condition is among the implied conditions finding its validity from the generality of the proofs of validity of conditions. Some of the consequences of mentally established conditions can be seen in legal issues such as right of lien, option for delay, option for lesion, option for defect, destruction of the object of sale before delivery, the maintenance of wife in the period between marriage contract and wedding, the necessity of liquidation of the object of sale and the like in the Shiite jurisprudence and the law of Iran.