مجله مطالعات فقه امامیه
پیاپی 9 (پاییز و زمستان 1396)

Khums is among the unambiguous and clearly defined rules of Islam accepted by both Shia and Sunni jurists as evidenced in the verse 41of Chapter al-Anfal as well as the Prophet's sayings and consensus of the two branches of faith. However, there are some discrepancies especially about the profits earned. Shia scholars are of the view that based on the apparent meaning of the aforementioned verse, and authentic narrations from the Infallibles (AS), khums is payable also on profits. Khums extends to both the principal capital and the profit incurred. Given the fact that some companies and institutions enjoy independent legal personality, it seems that the foregoing rule applies also to them. There are two reasons as to the applicability of this rule: One being the criterion that khums is applicable to every owned property and profit. Second, the conventional (wadhei) rule and the financial right that the Lawgiver has placed in the profits have to be taken into account. Obviously, the obligation of paying Khums is not dependent on the individual's mental capacity, saneness, and maturity.

This subject has long drawn the attention of Shia jurists who have, over the history of the development of jurisprudence, expressed their views and thoughts with reliance on the four major sources of the Shii thought. Some have accepted the husband's testimony and executed penalty on the wife. Some have allowed penalty on the wife on the condition that the husband should not have already falsely accused her of adultery, some have said that the husband should do lean which is to curse his wife as well as execute penalty on the three witnesses. Some others have differentiated between a wife with whom her husband has had sexual intercourse and one who her husband has never been in bed with. There is also yet another group of jurists who are of the view that punishment is not given to the wife and the three witnesses. Based on articles 174 and 175 of the criminal code of Islamic Republic of Iran, the husband's testimony has not been considered allowable and cannot be acted upon. This article seeks to analyze and describe the foregoing opinions and standpoints with regards to the testimony of husband against his wife in matters pertaining to rape and other crimes. Each argument and viewpoint has been presented, analyzed and discussed independently.

A licensing agreement is a legal contract between two parties, known as the licensor and the licensee. In a typical licensing agreement, the licensor grants the licensee the right to produce and sell goods, apply a brand name or trademark, or use patented technology owned by the licensor. This agreement is placed in Iranian law under article 10 of the Civil Code. To understand the effects of the agreement, it is necessary to know the common intention of the parties. In the event of a dispute, the parties can turn to the common and conventional practice in this regard and then to the intellectual property rights law and the licensing agreement and know-how. Based on Imamiyyah jurisprudence, the licensing agreement is not part of specific contracts. Thus, its legitimacy must be proved through the generalities of the rules concerning the fulfillment of contracts as well as some Quranic verses. The licensing agreement comes under lease in Egyptian law. So the obligations of the parties are understood through the joint intention of the two parties, and in the event of a dispute the parties are referred to Egyptian Commercial Code pertaining to the contract technology transfer.

One of the basic principles discussed in international jurisprudence is adherence to international commitments. According to Islam, this principle is considered to be one of the noblest human virtues as well as an essential condition of iman (faith) which, if breached, would amount to disbelief and faithlessness. Muslims are obliged to comply with this principle even in their encounter with non-Muslims. There are certain verses in the Quran such as the verse 1 of chapter al-Maedah where the Quran says "O you who believe! fulfill the obligations" and there are also narrations one of which is the famous tradition from the Prophet (S) who said: "Muslims are on (i.e. stick to) their conditions" which clearly denotes that one should remain committed to the conditions and agreements. The Holy Prophet's foreign policy and that of the Commander of the Faithful, Imam Ali (AS) are clear evidence of the necessity of complying with this principle.

One of the important and practical jurisprudential principles is the principle of tahzir (warning) which is derived from a narration from Imam Sadiq (AS) about one of the judgments or legal decisions made by Imam Ali (AS). In this narration which says "He who has warned is excused", Imam Ali (AS) says, in an absolute way, that the person who has given a warning before hand is not liable. Thus, not only he is not punished, he is also not liable for blood money. Early and contemporary Muslim scholars have passed verdicts in the same way without showing any opposition. By going through textual and rational proofs of this principle and its special conditions, it is proved that the warner is not blameworthy and therefore, he is not liable from civil and criminal perspectives.

There is a difference of opinion among jurists with regards to ownerless properties or estates. Some of them are of the view that one on whose hand a property has perished or one who has benefited from it is not liable. They have resorted to the principle of "Ma yutlab bi - qimatihi yutlab bi - manafieh wa ma la yutlab bi manafeehi la yutlab bi - qimatih" which means that anything whose price is asked for, its profits are asked for too, and anything whose profits are asked for, its price is not asked for". Some other scholars have said that it is not necessary that liability should be established only when a property has a specific owner. In fact, it can be established in favor of other possessors of rights. As well, there is no concomitance between an object and its profit when it comes to liability. Even in such cases, liability can be considered with regards to the profit so that properties which do not have a specific owner may be included in the first part of the principle, not the last part. Some other scholars are of the view that liability depends on the ownership of the people to whom the property has been endowed to benefit from its profit. That is to say, if the ones to whom a property has been endowed are the owners of the endowed object, those who benefit from it are liable against it. But in case where the beneficiaries have the right to benefit from the property only, he who usurps a property is not liable to them. As well, based on the opinion of some jurists, the endowed property can also be the subject of usurpation, and the usurper will be liable.