نشریه آموزه های فقه مدنی
پیاپی 28 (پاییز و زمستان 1402)

The usurper in Shīʿite jurisprudence is obliged to return the specified usurped property, except in the case of destruction (both factual and constructive) of the usurped object. Article 323 of Civil Code based on this, considers purchaser of the usurped property as a usurper which the owner can refer to him for the return of the specified object. A proposed bill, however, based on the amendment of the above article has been submitted to the parliament in order to protect the validity of the official document and protect the rights of a bona fide purchaser, according to which the usurped property that has been transferred through drawing up and making an official document and the customer is ignorant of its usurpation is considered as a destructed object and the owner is only entitled to its price, which can only refer to the “usurper purchaser” to receive it. The aforementioned proposed bill is controversial in terms of jurisprudential foundations, which is examined in the present article by a descriptive-analytical method and using original jurisprudential sources, because the criterion for the realization of constructive destruction is the occurrence of an intellectual or religious impediments in the return of the existing object. “Capable of being owned exceeding,” “impossibility,” “bodily injury,” “Destruction of a property with a known owner,” and “Destruction of a usurper’s property especially in the assumption of destruction and demolition of his/her considerable property” are among intellectual or religious impediments to the restitution of a specified object and cause the realization of the title of constructive destruction, but the mere “transferring acts” due to the forcible illegitimate possession of the usurper does not lead to the realization of the religious impediment and consequently, the title of a constructive destruction about a usurped specified object. In addition, in the case of the constructive destruction of a usurped specified object, the customer, whether ignorant or knowledgeable along with the usurper purchaser is the liable and responsible for something identical (fungible) or the price of the usurped property and merely ignorance will not be removed his/her liability.

Construction partnering between the landowner and the builder for the construction of condominium contract is one of the most common and widely used contracts. In the meantime, one of the challenging and controversial issues is the repudiation (termination or cancellation) of construction partnering before the construction of pre-sale condominium and its impact on the pre-buyers of the condominium share. The view that considers the nature of the pre-sale contract in the contract of construction partnering as its common and traditional sense, with the effect of the issue of possessory of the contract of sale (Arabic: بیع, Bayʿ) and principles such as the principle of correctness (validity) and the principle of non- authorization of the impact of termination (repudiation) and at the same time, regardless of the nature and concomitants of the contract of construction partnering, believes that the subsequent termination does not affect the previous pre-sales. In contrast, according to the second point of view that considers the pre-sale of the builder’s share as a contractual and continuous covenant in the construction of condominium contract has different and specific elements than the common and term concept of sale (Arabic: بیع, Bayʿ) even with the knowing of ownership of all types of contracts of sale and considering the principle of mutual consent (agreement) and the structure of the construction partnering contract and complete dependence of the pre-sale contract on that contract with the termination of the partnering contract before its enforcement had been cancelled the possibility of delivery of the object of sale in the context of partnering contract as the mother and the basis of pre-sale contracts and pre-sale contracts are subjected into forcible automatic cancellation. This article has proved the second theory by explaining and analyzing the nature of the contract of construction partnering and its relationship with pre-sale contracts in the form of maternal-fetal attachment (MFA) and conditional contract and considering the principle of voluntarism (dominion of will or supremacy of will), and considers as a remover of some legal challenges of pre-sale apartment contracts resulting from construction partnering contract in Iran’s judicial precedent.

One of the most important issues in contract law is the interpretation of contracts. The parties to the contract may have disagreements in the meaning of the terms and phrases of the contract. The disagreement in the contact faces an obstacle in the fulfilment of contractual obligations and the courts must interpret the contract in order to the settlement of disputes and fulfilment of contractual obligations. The most important purpose of interpretation is exploring the common intent of the parties. Textualists and contextualists both claim to discover the intent of the parties. Textualists take consider intention as the real and true intention of the parties and search for it in the context of the contract. In contrast, contextualists consider subjective intention to be the real and genuine will of the parties to the contract and consider the text of the contract as an incomplete resource regardless of the context in which the contract is formed. Exploring the real intention under the principle of freedom and principle of voluntarism is assumed as one of the most important values of legal systems in the field of contract law in this article. Therefore, the main criterion for evaluating each of these approaches is the ability to achieve the actual intention. The contextualism approach has more ability and accuracy in exploring the real intention of the parties by using extensive evidence. Although the textualism approach is consistent with the real intention of the parties in some cases, it is not very successful in exploring the real intent of the parties due to the limitation of the cited sources. It can be said in this research by relying on descriptive-analytical method and by evaluating the rules of each of these approaches that systems that consider contract as merely a tool to realize economic values in transactions are more inclined to textualism approach; in contrast, in systems in which the contract itself has intrinsic value and the realization of the parties’ intentions has relevance regardless of economic values are more likely to adopt a contextualism approach. Accordingly, in the author’s opinion, ending the unfinished textualism and contextualism struggle depends on examining the value priorities of a legal system in the field of contract law which has been neglected in the research of the last two decades.

The exclusiveness of property to two partners (monopoly of property) is one of the conditions stated by jurists in the implementation of the right of pre-emption (Arabic: حق الشفعه) and the application of this right is doubtful, if there are more than two partners. The issue of the research is that the views on the documents of the famous theory about the monopoly of the ownership of the shared object to two partners face serious criticism in creating the right of pre-emption and the famous opposition view is strengthened according to stipulated Ḥadīths (narrations) in breaking this monopoly and the main criterion of the right of pre-emption i.e., negation of damage. Criticizing the monopoly of ownership of the partnership property of two partners in order to prove the right of pre-emption is the purpose of this article and one of the causes of taking possession is using pre-emption which is emphasized in Article 140 of Civil Code of the Islamic Republic of Iran. The main achievement of this research, which is based on the analytical-descriptive method is that the right of pre-emption is general based on the fundamentals and narrative proofs (verbal evidence) and reasoning of narrations in the philosophy of making the right of pre-emption and this right is also acceptable where there are more than two partners.

The time value of money is one of the most important issues in economics which is less studied from a jurisprudential and legal point of view. The present money has more value than the future money according to this theory. Some Islamic economists have denied it and others have accepted it. Dissidents of the theory consider its contents as grounds for justification of usury but the supporters of the theory believe that the prohibition of usury is contrary to the theory and is merely a compulsory rule. The source of this disagreement is ignorance of two things in our opinion. First, the monetary value of time and the time value of money are assumed to be the same, and second, that the arguments in the field of probative of theory are not separated from those of its imperative (demonstrative) domain. We have evaluated the validity of the theories’ content in this article by a descriptive and analytical method in addition to explaining the distinction of the monetary value of time and time value of money, on the one hand, and on the other hand we have investigated the extent of its function. There is numerous evidence of jurisprudential and legal doctrines that shows that contrary to common thought, the content of the theory is valid from a jurisprudential and legal perspective, but the study of the extent of the theory indicates that is not possible to make profit and interest by relying on this theory according to the division of economic contracts into for-profit and nonprofit that the time value of money is only in the form of exploitative and profitable contracts such as sale (Arabic: بیع, Bayʿ) and in non-profit contracts such as lending (Arabic: قرض, Qarḍ), which are basically based on benefaction (Arabic: إحسان).

The freedom and dominion of will [supremacy of will], in addition to the law, are also restricted by public order and good deed (Arabic: الخلق الحسن, good behavior) in our Law [the Iranian Legal System]. Contracts contrary to public order are null and void. In this case, the condition is the same as a contract, and the rule of non-enforceability of contracts against public order and morals can also be extended to terms against public order and morals. Condition in this case is the same as the contract, and the ruling of inability to enforce contracts contrary to public order and good deed can also be extended and generalized to the conditions contrary to public order and good order. One of the conditions that couples under the influence of the current socioeconomic status are willing to include it in the contract of marriage in order to turn the other party’s adherence to this condition into a requirement having sanctity is the condition of not getting pregnant (failure of offspring), which is one of the serious challenges about it, is the issue of contradiction or non-contradiction with public order and good deed. We tried to answer this question by descriptive-analytical method in this study: What is the status of the condition of not getting pregnant in marriage in terms of validity or invalidity (annulment) due to opposition to public order and good deed? Finally, we found that considering the relativity of the concepts of public order and good morals, the condition of not getting pregnant in terms of validity or invalidity also becomes a variable and relative matter, and its contradiction or non-contradiction with public order and good deed completely depends on the status of each time period and the situation of each region. However, it can be said that this condition under normal circumstances is not against public order and good morals. In the legal texts of the United Kingdom and the United States, childbearing is not considered as one of the positive rights of couples towards each other, and its failure is not against the public order of these two countries.

Devices in the course of the evolution of science and technology continue to grow and develop for greater efficiency as well as being placed on smaller scales. The increasement use of microchips in the fields of medicine, services and etc. has caused a lot of concerns about the legal regulations of society and human about managing and control over this new technology, including license and legal effects of this technology. The use of this technology, especially its implantation in the human body for therapeutic purposes, from a jurisprudential and legal point of view, leads to consequences and liabilities for the person receiving the microchip, the physician and the factors that create or guide it. Microchips implantation in human and animal bodies is done for different purposes, but the invasion of human body is basically forbidden and illegitimate and the use of this technology and its disorders in legitimate cases may also cause injuries and damages to the receiver and others. Therefore, this article is a descriptive and analytical research method to describe this achievement and especially the civil liability caused by physical, mental and financial damages of its use and analyzes various assumptions of how to create legal liability.

The fulfilment of a contract may be made impossible by events involving the subject. The fulfilment of the contract may also not provide the primary purpose of its formation. This is sometimes attributable to the act or omission of one of the parties to the contract and sometimes it is not attributable to any of them. The verdict of impossibility (Arabic: تعذر) of the fulfilment of obligations arising from the contract in cases that cannot be attributed to one of its parties has been reviewed. Although sometimes “automatic cancellation in the case of destruction of the object of transaction before taking possession” and “nullity in case of impossibility of fulfillment of a contract” are considered to be the requirements of the exchange, it can be found another common aspect between the two rules and considered it as the reason for both rules and it should be considered as different expressions of the same rule. The invalidation in case of impossibility of fulfillment it and also the automatic cancellation of the contract in case of destruction of its subject matter before taking possession is the result of synallagmatic (bilateral) contract.

Acomparative study in Iranian and French law has been investigated and reviewed in this article around the contract of assignment and the necessity of drawee (Arabic: محال علیه, assignee)’s consent in order to use the results of the discussion to prepare the general theory of cession of debt and seeking in Shīʿa jurisprudence. The question is, who are the parties to the contract of a bill of exchange and whether it is necessary to obtain the consent of the drawee for the conclusion or effect of the contract of the bill of exchange? Moreover, is it possible to deduce the institution of transfer of religion and cession of debt and novation of debt in a direct manner from this discussion in Shīʿa jurisprudence and civil law and is it possible to analyze the second and third paragraphs of Article 292 Civil Code based on it? We came to the conclusion by a descriptive-analytical research method and by studying jurisprudence texts and legal doctrine that the stronger opinion in Shīʿa jurisprudence and Iranian law is that the consent of drawee (assignee) is necessary for the occurrence of the bill of exchange and he/she is considered as a party to the contract and the death or incapacity (Arabic: حجر) of each of drawer (Arabic: محیل, assignor) or creditor (Arabic: محتال, beneficiary of a draft) or drawee (Arabic: محال علیه, assignee) between offer (Arabic: إیجاب) and the last acceptance (Arabic: قبول) causes the extinction of the validity of the agreement (Arabic: تراضی, mutual consent). In addition, among the rules of bill of exchange and issues which are discussed in jurisprudential texts and civil law can accept the validity of cession of debt and novation directly in Shīʿa jurisprudence and Iranian law. Thus, contrary to what was common in Roman law and old French law, the “active deb” (claim), like tangible assets can be transferred to another even without the consent of the debtor. Also, unlike Roman Law and Old and New French Law (before the 2016 and 2018 reforms), “debt” is separate from obligor and the debtor can transfer the debt to a third party with creditor’s consent by materializing this constructive being which has long been accepted in Shīʿa jurisprudence and finally recognized it after centuries of disagreement and doubt in 2016.

A comparative study of the unreliability of transactions with the intention to escape from religion in Iranian and French law; With a view to the uniform judicial precedent judgment 774 dated 20/01/1398The deal to escape from religion has faced many challenges in Iran legal system for a long time and this challenges have peaked because invalidity of agreement is deleted from article 218 of old civil law so that the result hasn’t explicated in Iran legal system till now. On the other hand, legislator hasn’t commented the result of such agreements in law of implementation of financial condemnation act 1351, 1377, 1394. It has mentioned as a result to possibility of creditors’ rights to be transferred to transferee so that this strengthens theory of untrustworthy of such transactions. The basic condition of dealing to escape from religion crime is former and final judicial conviction of debtor that it has faced many challenges in procedure.’ rights to be transferred to transferee so that this strengthens theory of untrustworthy of such transactions. The basic condition of dealing to escape from religion crime is former and final judicial conviction of debtor that it has faced many challenges in procedure.

The murder of the testator by the heir in testamentary disposition (testament for disposition of personal property), while challenging and lacking in research background, raises the question of whether such a murder can deprive the legatee of taking possession of the bequest (legacy). Three jurisprudential views based on the investigations can be considered in this regard that the murder of the testator by the legatee has no effect on taking position of the legatee according to the famous view and the legatee is still the owner of the bequest (legacy). However, two other views, in a little detail, are based on the fact that murdering a testator by the legatee as in the case of inheritance would prevent the legatee from the bequest (legacy). The present article considers the famous theory acceptable by using a descriptive-analytical method and using library resources, while critically analyzing and evaluating the jurisprudential fundamentals of the proposed views and also considers the prevention of the legatee from the bequest more acceptable by arguing that on the one hand, no evidence that stipulates the prevention of murdering from testamentary disposition (testament for disposition of personal property) and the absoluteness of verses, traditions and principle as the main reason for the famous point of view, each of them can be undermined in some ways and does not have the authority to prove the famous point of view.

The distribution of liability is one of the most complex discussions related to civil liability. It is difficult to know the contribution of each multiple causes (grounds), because of the fact that there are usually multiple means involved in the development of harmful acts in the creation of the incident and the distribution of liability. The most Shīʿite jurists have adopted the theory of equality in multiplicity of causes, but some contemporary jurists have chosen the theory of distribution of liability based on the extent of guilt without critiquing its fundamentals and challenges. This is the reason that this article is written to explain the position of theory in the jurisprudence of Ahl al-Bayt (Arabic: اهل البیت, the family of the Prophet) and examine its fundamentals and jurisprudential challenges. Examining the proofs such as the verse of holy Quran 2:194 and the principle of precaution, it is resulted that although the proportion of fault cannot be considered as the main theory of distribution of liability, but it can be considered as a secondary and supplementary theory.