نشریه فقه و مبانی حقوق اسلامی
سال چهل و دوم شماره 1 (پاییز و زمستان 1388)

There are different views, about the authenticity of Esteshal (Masalehe Morsalah), among the religious jurisprudences of sunnite and Emamieh. Each of them has offered arguments possibly in rejecting and proving Esteslah, but they took an extreme in their arguments. The present study attempts to prove that Esteslah, which had been presented by jurisprudents, in the context of social issues, is definite, general and urgent need of Islamic jurisprudence, specially, in responding to governmental issues. There are some sunnite jurisprudents, who consider Esteslah as an independent source for finding out and conceptualization of jurisprudence laws. On the other hand, some others, along with a group of Imamieh, consider it as a subcategory and reasonable proof of tradition, and what is among Imamieh acceptable is that Esteslah is a subcategory of reasonable wisdom. This issue is inferior to the basic need of a dynamic jurisprudence for Esteslah.

In this paper, in one hand, the term of "ill" has been critically studied with a viewpoint of new illnesses, the end of which is death; and it has been restated considering the three criterions including avoiding the daily activity, being dangerous and fatal. And in the other hand, the conception of the necessity of law's silence has been criticized briefly and vaguely. It has been proved that being silent toward denial and approval, is actually approving denial. Accordingly, the theorem of meaningfulness of the legislator's silence toward the interdiction of the ill is strengthened, and the legislator's opposition toward the well-known theorem and accepting the former jurisprudent's idea which states that the final illness has the right to take position of his property completely, is proved. In addition, the conception of paradoxes in the articles of civil law about the interdiction of the final ill, especially in the articles of 944 and 945 is nullified by ill's general and special terminology. In these articles, the term illness comprises all types of illness. But in the interdiction of final illness, it is special and comprises only an ill that is leading to death and has the three criterions.

Merchants put the commercial documents to security in commercial relationship with each other and banks. That is called "mortgage of commercial documents" and this action is computed by endorsement method for security. Commercial law of Iran hasnt foreseen such a institution to mortgage for commercial documents. So court judges and lawyers analyze the case of mortgage of commercial documents by civil law and mortgage contract; but they face with some problems to do such action. One of these problems is voidance of mortgage contract from mortgagee. This essay attempts to present a solution to this problem. in the name of god.

Since the jurisprudential traditions have accepted clearly buying & selling the hunter dogs and there is no available jurisprudential traditions about other species of dogs like as flock, garden and..., many of the jurists dont accept the trading and selling of those dogs. But deliberating upon traditions show that the buying & selling of those dogs is correct and there is no problem. In addition, analysis of the problem shows that, buying & selling of this animal only for enjoyment and amuse is forbidden and illegal. Accordingly, there is no ownership and proprietary right for this kind of dogs. IN THE

Concerning Wudu (minor ablution), there are different views among the schools of Islamic jurisprudence. It is to be confessed that the Holy Qur’an has explicitly talked about minor ablution. The disagreement, however, of the Qaris (those who recite the Qur’an) on how to recite the related verses, gave rise to different understandings and diverse legal fatwas on the issue. The verses of minor ablution, according to a great number of Sunni jurists, signify one single meaning, whatever form they may be recited. Some traditions, nonetheless, are referred to as the source of some justifications brought about a considerable gap among Muslim jurists. This article attempts to re-analyze the two understandings of the law of minor ablution and to examine the way the difference had come in order to pave the way for some common point between the two schools. The author argues that even the Sunni jurists have not shown some reliable documents or clear-cut text of traditions from the holy Prophet (PBUH) to prove washing of the feet and the converse washing of the hands. The article then concludes that if the Sunni jurists were bound by their celebrated collections of hadith and paid

Omission that leads to death of another is crime in criminal law of Iran, whether doing it being duty of forsaker or not. In the first case, that person has not obligation or duty toward another, not for killing of victim but by virtue of first part of single-article of bill of the penal code of 1354, forsaker becomes convicted due to refrain from help to injuries and body hazards removal. In second case, forsaker, based on law, contract or custom has had duty for preventing of effect of killing of incidence causes, if he/she abandons voluntarily with the intention of killing of victim his/her action, is murder and it will be included the article of 206 of Islamic Penal code. Islamic penal code with mentioning word of act in three parts of the article of 206 of Islamic penal code that means behavior, has accepted this sum duty and abandonment arising from it as murder crime. In this case, the custom establishes causation between the accused's behavior and death of victim, although from material view point, causation between these cannot be established.

Having child in family system is a serious challenge in the current era. There are different views about it among jurists: 1) Having child is not as a religious identity and inherent appropriateness of marriage contract. 2) Having child is a part of absolute appropriateness of marriage contract but this right is only dedicated to woman. 3) Having child is not as a religious identity and part of absolute appropriateness of marriage contract. The only way of lawful back up for compliant about intentional preventing from pairs is that having child within marriage contract or agreement of contract based on it change to a binding guaranty. This paper attempt to study analytically, the presented reasons for each point, to prove the correct one.

In spite of different ideas of Islamic jurists, in Iranian law, in article 184 of civil law, the suspended contract has been accepted and only exceptionally, this contract is null. In the French law and some of the Islamic countries, there are two kinds or suspensions: suspension of formation of contract and suspension of dissolution of contract. In the civil law of these countries, the event that the contract has been suspended on it must have the characteristics that without them, the contract will be null or will be other contract. In civil law of Iran, there are no characteristics for the event of suspended contract. In this article, with analyses of Islamic law and comparative law, the characteristics of event in the suspended contract will be examined.