نشریه فقه و مبانی حقوق اسلامی
سال چهل و پنجم شماره 1 (بهار و تابستان 1391)

On the one hand, various opinions are presented as to the semantics of terms of the first verse of sura 5, and on the other hand, jurists have inferred different precepts from that verse. Nevertheless, influence of such semantic theories upon deducing juristic precepts of that verse is not dealt with as a subject of study. The present essay intends to survey that point and deal with the question whether semantic theories as to the terms of the verse in question influence deducting its juristic precepts, so that it can be treated as one of jurists’ essentials and thereby be inferred that difference of jurists in such essential may cause multiplicity of their opinions. The most notable finding of this research is presentation of this question and discovering its answer; for influence of semantic theories of terms of the said verse on deduction of its juristic precepts, as an essential of difference of jurists’ opinions, has not been taken into consideration by researchers in the field of jurisprudence and the essentials of Islamic law, and an emptiness is clearly observable in this connection

One secondary issue of marriage contract, raised as to the dowry, is “the delegated dowry” in which the bride is authorized to determine the dowry. According to juristic rules, the determined dowry cannot be more than the Traditional dowry (which is equivalent to 500 Dirhams) while according to the article 1090 of Iranian Civil Code it cannot be more than the proper dowry (mahr al-mithl). In order to solve that contradiction, two solutions can be raised: first, proper dowry cannot be more than the Traditional dowry, according to which should the delegated dowry be determined as more than the Traditional dowry it would not be operative as to the extra amount; and second, in which we believe, should the delegated dowry be determined as more than the Traditional dowry, the amount up to the Traditional dowry would be treated as the Traditional dowry and the additional amount as donation or composition

Time transactions which transfer ownership are presented in the Iranian civil law in such a way that rights and interests of sellers may become in danger because of nonpayment of the price. The reason is deficiency of Iranian civil law with regard to rules of breach of contract, right to withhold, and sanction of installment sale. In such transactions, sanctions are in favor of the buyer and not the seller, since the former has the right to the object while the latter has the right to the debt. Hence, existence of abrogating condition in such transactions, especially sale, has become of great significance. By adding such condition to the sale contract, the seller can restore his ownership in case he does not receive the price. Investigation of nature and legal-juristic effects of abrogating condition seems beneficial and important

Based on automatic liabilities,general rules of transactions,juristic rules,and rules of principle of jurisprudence,the present research discusses and surveys lawfulness of demand of late payment damages.According to such essentials,one can assert that money is not merely a fungible property to be treated only on the basis of rules and effects of fungible properties;rather,one can make judgment that late payment damages caused by depreciation of monetary value should be indemnified even beyond conditions mentioned in the article no.522 of principles of civil litigation due to analogies made between money and merchandise as well as procrastination and usurpation,destructing others’ properties,preparing grounds for damaging others, juristic rules of “there is no damage in Islam,”negation of hardship,prohibition of consumption of others’ properties in vanity,etc.on the one hand and such definite religious principles as justice,negation of ignorance in contracts,fulfillment of promises as well as judgment of the custom,public interest,and this fact that nature of credit monies is nothing but purchasing power.Making such religious judgment seems necessary,for the modern era has its own necessities and limiting religious precepts to appearance of religious proofs as well as jurists’ verdicts would allow opponents to blame the perfect,thorough Islamic law as being insufficient and fanaticism

Secularization of religion, in the sense of separation of religion from the society or its reduction to the limits of intellect, is product of a western thought and produced by specific characteristics of western civilization and its relation with Christianity and specific transformation of that culture. In the Islamic societies secularism of laws and precepts is also a matter of discussion. Analysis of essentials of the two contradictory opinions on the acceptance or rejection of the custom in the Islamic legal, juristic system and the Islamic community in the three following parts of meaning of influence of the custom in juristic system, the realm of shari‘a and religion, and the realm and scope of function of the custom can clarify the right position of entrance of the custom and the mode of its influence upon the system of jurisprudence and law solving some problems raised in this connection

One customarily subsequence of high dowries is that the wife may make such possessions that will often be against her interests in case of occurrence of divorce. Considering significance of supporting the wife, it is necessary to investigate how her possessions should be treated and how she could be protected. The Wife’s legal possessions may be an agreement on not paying dowry or proper dowry, before or after sexual intercourse, which will all be nullified due to contradiction to the law. They may also be caused by threatening on the part of husband or a third party, in which case contract of dowry transferring would not be operative and its discharging would be nullified. Possessions caused by deception and fraud or compulsion caused by husband’s misbehave is inconsiderable. Possessions conditional upon implied term are voidable in case of breach of condition and her absolute possessions are operative – though it would be better to convince the husband to waive his right to half of the dowry should that happen before the sexual intercourse

Criminal maturity is a relatively new expression in the criminal law literature. Significance of this discussion in the legal community is mostly because of the practical predicament caused by directing criminal liability to individuals whom the customary conscience considers child while the prevailing perspective treats them as deserving a reaction equivalent to the reaction to their fathers. The present essay attempts to reread essentials of the prevailing perspective which claims adequacy of maturity in the criminal liability. This rereading leads us to the conclusion that multiple proofs can be found in the Quran and hadiths, which are foundations of the Islamic legal system, as well as words of great jurists that intellectual maturity is a condition for criminal liability

The problem of Homicide in the Marriage Bed, which was adapted from the former French criminal law and included in the Article 179 of Iranian civil law before the revolution, was reflected in the article 630 of Iranian civil law after the revolution. The subject in question which was a matter of legal criticism before the revolution became a matter of juristic criticism as well when it was based on juristic essentials and appeared in the article 630 after the revolution. Such problems as weakness of theory of legitimate defense as the foundation of justification of the judgment, weakness of juristic essentials, and possibility of misuse of the judgment are argued for incorrectness of the judgment. Those problems are chiefly caused by negligence of the point that it is peculiar to the position of realization and not that of demonstration first, and lack of precise analysis of juristic essentials being contented with mentioning opinions of some jurists without narrating their own words in this connection secondly. Should these two problems solved, soundness of that judgment would definitely be revealed