credit

Debt is a generic property that situated in the zemmah of the debtor. Debt has two stages: situating in the debtor’s zemmah and its exit from the debtor's zemmah and belonging to a certain property. The next stage is usually performed by determining and submitting an instance of debt to the creditor. If the creditor is willing to accept the debt and collect it, there is no problem, but sometimes the debtor tries to pay the debt and the creditor refuses to accept it. In this case, according to Article 273 of the Iranian Civil Code, the debtor is discharged by giving the instance of debt to the ruler or his deputy. The Article does not provide for the situations where the ruler is not exist. From a jurisprudential point of view, in these cases, the debtor can designate a part of his property as payment for debt. The question is in what way adebt can be determined and what effects does it have? The present article, using the analytical method and library tools, aims to explain the methods of determining the debt and to prove that designating the debt in an specific instance leads to the acquittal of the debtor's liability and that instance into the property of the creditor.

The concept of condition is an old and well-known principle in jurisprudence and law of Iran and most of its varieties are scrutinized by jurists and lawyers. However, the term Ertekazi condition is not only a new combination in jurisprudence and law but also has uncertainties unique to its concept. Ertekazi condition refers to constant condition in the minds of contractors which is not being discussed prior or after the contract. Furthermore, such uncertainties make the conceptualization of the condition more difficult to understand in relation to the rules governing it, and how similar it is to the other conditions is also under question.  This study aims to explain the nature of these conditions to prove that the credibility of such conditions is as valid as other authorized conditions, which includes all evidence of the fulfillment of the obligation. Finally, regarding this condition, some of its problems and required rules will be discussed.

A cash sale is a sale in which the seller sells a product on credit to an individual, then the seller buys the same product from the customer in cash, at a lower or higher price. Biya Aina is considered one of the types of Biya in jurisprudence, this type of buying and selling, in the past and among ancient nations, was to escape usury and was popular among people. On the other hand, the right of lien in pure barter contracts such as sale, each of the parties to the contract can refuse to submit and hand over their exchange to the other side of the contract, until the other party agrees to submit their exchange. According to the definition of visual sale and lien, the main question in this article is, is there a lien for each of the parties in the visual sale? In response to the mentioned question, it is necessary to examine the nature of sale in kind, its conditions and Shariah evidences, the nature of the right of arrest, the principles and conditions of its implementation, as well as the opinions of jurists in the context of the implementation of the right of arrest in jurisprudence. to be It seems that the application of the right of lien in the in-kind sale, in the first sale, which is between the seller and the customer, the seller is sold on credit and with a fixed term, there is no lien for the parties to the contract in the in-kind sale, but in the second sale, where the exchange is in the form of A cash payment is concluded between the contracting parties, for each of the parties to the contract in the sale of the goods, the lien is enforceable due to the existence of the exchange.

Law is a phenomenon born of human reason and designed to achieve a specific end. Legislation is a scientific method that is carried out in order to achieve a specific goal, without which legislation remains a pile of rules that are unrelated to each other. Therefore, the legislator must always take into account the goals he is trying to achieve when creating new legal regulations in order to avoid inconsistencies between legal regulations. Regarding the special importance of the objective of bankruptcy law, it should be said that the design and implementation of bankruptcy law affects the economy of the country, and the design of an efficient bankruptcy law also depends on the knowledge of the appropriate objectives of bankruptcy law. In addition to the authority of the legislation, the existence of the objective of the bankruptcy law helps to interpret the legal provisions correctly. Of course, setting appropriate goals for a law is not enough and must be accompanied by its effective implementation. Therefore, once the appropriate law has been enacted, it is necessary to monitor its objective results at the level of society to see whether it has achieved the desired goals in practice or not.In this research, the importance of paying attention to the principles and objectives of bankruptcy has been recalled and various theories that exist in this regard have been examined. In Iran's legal system, the basic goal of bankruptcy law is to protect the rights of creditors, but in this research, regardless of Iran's laws, the basic goal of bankruptcy law has been considered and studied. One of the common functions of bankruptcy law in different legal systems is to reduce the problems of coordination between debtors and creditors and to adjust the incompatible demands of them and other parties affected by bankruptcy, but the basic question in this research is what is the fundamental purpose of bankruptcy law? In fact, bankruptcy affects a wide range of groups, so the main issue is whether bankruptcy law should only protect creditors or should balance the rights of different groups? Another question is what is the main objective of bankruptcy law, to satisfy creditors' claims or to rehabilitate and survive the business and give the entrepreneur a fresh start? In response to this question, several theories have been expressed and analysed as follows: creditors' bargain theory, broad-based contractarian theory, multiple value theory, explicit value theory and fresh start theory.It seems that bankruptcy law should keep all creditors, debtors and different interested groups in proper conditions, and with the fair and optimal distribution of losses, bankruptcy law should balance the conflicting interests of different groups.Indeed, the most effective means of balancing the interests of disparate interest groups is to redistribute the losses incurred as a result of bankruptcy among them. The fundamental objectives of bankruptcy legislation can be distilled into two key principles: firstly, to achieve a balance between the interests of the various groups affected by bankruptcy, and secondly, to provide debtors with a fresh start and to stimulate the economic activity of companies. It appears that bankruptcy legislation should prioritise the provision of a fresh start for the merchant before preparing collective debt collection in an optimal and fair manner. The objective of enhancing the welfare of creditors represents only one aspect of the secondary goals of bankruptcy law. Furthermore, legislative and judicial policies should align with this fundamental objective. Indeed, rehabilitating viable businesses and offering a second chance to enterprising individuals can facilitate job retention, enhanced creditor repayment, sustained business relationships, economic growth, and increased social welfare. Ultimately, it is essential to integrate these objectives into the design of a bankruptcy system, with due consideration for their relative priority.

In the current research, by examining the theories, procedures and internal banking contracts, as well as by studying the banking laws and regulations and the civil law, we find that these types of contracts, although they are not specified in the civil law, have a legal face and according to Article 190 of the law Civil contracts are concluded and valid, and on the other hand, according to the nature and using the customer's position of weakness when concluding the said contracts, banks impose conditions and obligations on the buyer that distinguish them from other contracts, which are mentioned in the text, the differences It is examined in detail and we also find out at the end that the mention of installment sales contracts in the law of usury-free banking operations should not create the illusion of its monopoly, in other words, the conclusion of such contracts is prohibited in societies outside the banking system if it is not against the propositions of public order and good morals. does not turn.

The current research method is analytical-descriptive of applied type and using laws and regulations and library resources, especially banking laws and regulations.

The meaning of installment sale is the transfer of the same thing at a known price, otherwise, all or part of the said price is received in equal or unequal installments on the due date or due dates.

The civil law has not taken any action regarding the sanctity of the condition of legal omission, and this has caused a difference of opinion among the jurists. Some have commented on the annulment, some on the validity, and others on the invalidity of the legal act of impermissible (forbidden) act. This research tries to strengthen the recent theory and for this purpose, suggests the theory of arbitrary (contractual, credit) coercion. According to this theory, the sanction of the person who is responsible to perform a condition which is against him (Arabic: مشروط علیه) and he/she violated that condition in this type of condition, according to the primary rule is compelling and the impossibility of the coercion (compelling) of the person who is responsible to perform a condition is not imagined; because, the coercion (compelling) of the person who is responsible to perform a condition is arbitrary (contractual), which means that the legal act of impermissible (forbidden) act is concluded in a contractual way. In other words, coercion must be of the form of the desired act, and since the mentioned act is arbitrary (contractual, credit), the manner of coercion must also be arbitrary. This coercion (compulsion) without the need to perform any material or legal action is done spontaneously. Coercion has been realized, when, there is no effect legally on the person who is responsible to perform a condition which is against him and promised it, and there is no need for any further action. Accepting the validity of the forbidden legal act, in addition to the inconsistency with the intention of the parties, means the permission to the breach of contract and the effective termination of the contract. The theory of nullity is also incompatible with the foundations of our legal system.

Money creation (money issuance) is one of the most important economic phenomena that leaves many effects on the economy. In order to grant loans to bank customers, money or credit based on which banks create credit from “nothing” in the account of the loan applicant is created. Although this phenomenon has also supporters, but this same group also admits and acknowledges the destructive economic effects of money creation. Its most important effects include economic instability, unbridled inflation, discrimination and violation of justice. This issue can be considered as a matter of concern affecting the Islamic society because there are few people who have not applied for a loan from banks. This phenomenon from a jurisprudential point of view can be considered as an unlawful ownership (in Arabic: اکل المال بالباطل, unjust enrichment); because, the bank acquires property (tries to make money) instead of “nothing”. On the other hand, the prohibition of the abuse of the right, which is based on the evidence of the rule of prohibition of detriment (in Arabic: لا ضرر, principle of harm), implies the prohibition of the creation of money. Banks have the right to loan their customers money and this right is considered by law and Sharia (Arabic: شریعه, Romanized: sharīʿa, religious law) for them, but they have made this right an excuse for their profiteering (mercantilism, trade) and causing harm (damnification) to the whole society, which is ruled to illegitimacy on the basis of the evidence of prohibiting the abuse of the right and principle of harm. It should be finally noted that the criterion stated in some ḥadīth (pl. aḥādīth, literally means talk or discourse, narrations) for the unlawfulness of usury, which is the earning of profit without anything in return (equivalent), is equally true about the creation of money, and it is possible to generalize the prohibition of usury by conclusive rectification of the effective cause (Arabic: تنقیح المناط).

One of the most important economic assets that causes many disputes for people in the society is real estate. For this reason, advanced legal systems have established special regulations to organize ownership documents. In Iran's legal system, despite the passage of a long time and the passing of several laws, which is the last will of the legislator under the title "The Law of Permanent Decrees of the Country's Development Programs", an objective and specific criterion has not yet been provided regarding the validity of official documents. Legal doctrines have also analyzed the angle of this legal challenge, and sometimes they have tried to provide a solution by referring to other legal systems. The judicial procedure has also become confused in such a way that it could not fulfill its mission, which is to remove ambiguity and prevent the issuing of contradictory opinions. The present study intends to answer the question with a descriptive-analytical method, that in order to identify the absolute validity of notary documents against normal documents, it is necessary to refer to the origin of the issuance of the ownership document? Considering the lack of legal resources, the most logical solution is to amend the law. But until then, by interpreting the principles of the set of laws and taking into account the privileges of notarial documents, an objective and specific criterion should be determined as a rule to solve the current legal challenge, which is the identification of notarial credit in an absolute way. This credit can be violated only in cases of legal authorization. Contrary to the opinion of some jurists, the recognition authorities, regardless of the origin of issuing documents, must independently give legal validity to official documents of ownership and in cases of ambiguity, interpret the laws in favor of validating notarial documents.

All the problems of a conventional economy are rooted in something real (not real) called inflation. So that even the problems of stagflation, poverty, class divide and unemployment go back to inflation. As a result, it seems that this fact is born of a false credit. As long as this is wrong in the economy, these problems exist. Of course, this seems to be the definition of money in the economy.

The hard core of Islamic economics is money. In this research, the jurisprudence of money in Islamic economics is analyzed. To explain this in detail, it is necessary to analyze the following:1. The role of credit in the economy: Money is a concept of credit (such as meters and kilograms that are credit but have a real origin). The result is not money, goods, capital, wealth of the individual and society. Its ownership is public. Which is necessary and obligatory to circulate in the economy in the form of good loans.2. Analyzing the concept of tax and ownership in Islamic economics 3.The position and role of money in economics (explanation of 4 theories) It seems that in Islamic jurisprudence, money is property (only and only consumer value). But it has no tax (exchange value). But also has ownership. It has credit ownership. In order to maintain the principle of ownership in society, it is necessary to consider money as credit ownership. The principle of ownership is violated when money is considered otherwise.

Ethical considerations:

 In all stages of writing the present study, while respecting the originality of the texts, honesty and trustworthiness have been observed.

Money is a tool for measuring value. But the means of exchange is not money (in conventional economics, money is considered the medium of exchange). The means of exchange is consciousness. This is the key to the jurisprudence of money in Islamic economics. In other words, what creates the exchange is not money. It is consciousness. In other words, what transmits value is the awareness of economic agents. Awareness of economic agents that they are exchanging the same values. In other words, a condition is necessary for the formation of money exchange. But the condition is not enough. A sufficient condition is the exchange of consciousness. If consciousness is removed, exchange will not take place. That is, with money alone, exchange does not take place. It is in spite of economic awareness that exchange takes shape. Awareness is the missing link in economics. In other words, in economics, the role of the observer has been ignored. Observers who exchange views with each other.

Exchange is not formed without awareness. Exchange is not formed by removing consciousness. This is a very accurate point. The instrument that plays the role of measuring value must be different from the instrument that plays the role of transmitting value. It is a means of measuring the value of money. But it is a means of transmitting the value of consciousness. With this kind of look at money in economics, money can never be made.

The issue of right is one of the fundamental issues of human social life. Human beings claim different rights to achieve their interests and goals. Rights, some of which are natural and developmental and some of which are credit. Irrespective of developmental rights, most of the rights that human beings have, which are especially discussed in jurisprudence and law, are credit rights. One of the serious issues in the philosophy of law and politics is the study of the origin of credit rights, what is the origin of credit rights and basically what inventory can forge credit rights. The present article seeks to examine the most important views on the origin of credit rights and explain the preferred view in this regard. In this study, four sources, namely God, subject law, contract and custom, have been examined and finally it has been concluded that God is the source of credit rights in jurisprudence, law and politics.

One of the severe qualities of punishments is plurality of crimes, it is divided into two types: actual and credit. About number of crime. Criminal lawyers believe to guilty punish severely, while .this view is not about the number of credit. But, regarding to examples of number of actual and credit there is disagreement, one of the differences is that a criminal during commit a crime, that is his/her main purpose, do another crime as an introduction of original crime. Now, the question is this situation the preliminary crime should be inside of main crime and believes in the unity of crime or it is one of the example of number crime (actual)? The Iranian Penal Code is silent about the topic under discussion but with reference to the doctrine and jurisprudence, it was necessary to consider this point that in the Iran's current criminal law, "give priority a crime to another” is one of the examples of actual plurality of crime.

The time value or time price is one of the important issues in economy and financial management whose acceptance or rejection has a significant impact on the analysis of other issues related to the financial markets. Proposing legal reasons, some Islamic economy scholars and theoreticians of Islamic monetary markets have accepted the money value of time and have considered it unproblematic. Some of the most important reasons include the rule of duration (lilajali qistun min al-thaman), the difference between the price of credit and that of cash sales, and the permission of advance payment or discount of the debit. Using a descriptive-analytical method and relying on the jurisprudential and economic sources, this article reviews and criticizes these reasons and shows that first, the theory faces different jurisprudential problems in terms of imagination and second, the reasons of the adherents of the theory are unable to prove the jurisprudential credit of the money value of the time in terms of affirmation.

The Council of Money and Credit, as one of the most important components of the central bank of Iran, is responsible for regulating macroeconomic policies of the country’s banking and supervision over banks and financial and credit institutions. In order to carry out its duties, the Council has laid down many approvals that are binding on the banking system. However, in some cases, these decisions are in conflict with current laws and regulations or have been outside the scope of the legislative authority of the Council. Hence, there are many questions and ambiguities regarding the position and legal scope of the decisions of the Council of Money and Credit. For instance, are the council’s regulations mandatory for other executive organizations in addition to banks and financial and credit institutions? Otherwise, if the rules are contrary to the Constitution, or the ordinary law, what is the duty of the executors? Given the lack of anticipation of the prior assessment of the above-mentioned approvals, in the course of a dispute and a lawsuit, does the court have a duty to assess and have the right to disregard the effects of such decisions, which have not yet been canceled?

In the present era in Iran legal system, several comments have been made with respect to one of the most fundamental concepts of bankruptcy law which is the cessation of payments. Some of the law intellectuals believe that only not paying the debts at the due time will result in bankruptcy and apparently article 412 of commerce code approved in 1932 confirms this belief. On the contrary, Some of the other intellectuals believe that the merchant must be incapable of settlement of his dues considering all his assets and not being capable of paying one or more debts shall not be deemed as the insolvency in its own aspect. In countries like Iran in which merchants usually have delays in paying their debts, considering the first belief would be in contrast with the practical truth of the society. Also comparing Ifla's with bankruptcy rules in commerce code and implementing ratio of assets to the debts is not considered by the legislator. On this basis, it seems appropriate to provide a moderate view based on a legal and economic analysis of the cessation of payments. The research in this regard will be the subject of this article along with a look at other legal systems.

As an institution influencing the socio-economic relations of human societies in the present era, "Bank" is of high importance. Thus, such subjects related to this area as "bank and its nature", "money and its role in the economy and trade", "riba (usury) and its difference with profit", "conventional and Islamic banking", "banking services such as letters of credit (LC)" etc., all known as "banking law", which is an important subset of economics and business law (both domestic and international), are also of particular importance. At the same time, the necessity of pathology of the Usury-free Banking Law (1983) after four decades of its implementation has provided the grounds for different opinions from experts in this area: Has Iran's banking system been successful in implementing and enforcing the said law, or has the banking operation been diverted from the sharia and legal path for various reasons and has adopted a "quasi-usury" policy? Given that the main focus of "Islamic/non-usury banking" is on usury and its religious sanctity, the necessity of addressing this issue fundamentally by the supreme religious authorities and jurists is felt more than ever, and therefore seminaries along with Iranian universities as two main source of thought production in society are obliged to provide the necessary religious and academic answers to questions and ambiguities related to the above issues by conducting original and fundamental research. The present study attempted to address the various aspects of the subject under discussion and provide the opinions of experts in banking law (including scholars and academics), as far as possible, to explore the importance of the issue and present solutions to the current problems related to Islamic banking so that they can be used in the amendments to the said law, which is desired by the Islamic Consultative Assembly and the government. Therefore, after the introduction, the overview dealt with, evaluated, and analyzed the bank and its importance in the present era, as well as the sublime position of Imamiah jurisprudence/Ahl al-Bayt (PBUT) as a divine resource and strengthening the fundamental subjects related to and influencing contemporary law. Then, the objections and criticisms regarding the function of the banking system in the implementation of Islamic banking within the framework of the law on usury-free banking were considered. Finally, after summarizing the results, suggested amendments were made to be used by officials and those interested in this significant area of law.

Murabahah is an attribute that the commutative contracts such as sales can be attributed to it. Jurists say that Murabahah sale is when the vendor with the saying the capital and profits to the customer's request, supply the sales.
With legislation such as the interest-free banking as well as the five-year plan, Murabahah contract became one of the financial instruments in achieving legal and Interest-free banking system into the country's banking system, And with the approval of the Murabahah contract procedures in 1390 by the Council of Money and Credit, The first article of guidelines of Murabahah says: Murabahah is a contract that Supplier informs the cost of goods and services to applicant Then, by adding an additional amount or percentage as profit, grants it to the applicant. With regard to the definition of jurists and lawyers from Murabahah sale and operating instructions, to enter into any Murabahah contract, must in addition to the public condition comply with the specific condition, such as knowing capital and interest. In this article, it is referred to specific provisions in legal and law texts. Our research method is descriptive and analytical. We tried to bring the Jurisprudence and legal opinions with the Legislation to conclude.

The whole or part of contractual rights is transferred to the transferee through agreement between the transferee and the transferor in the course of transferring credit، and by that، the transferee is replaced with the transferor in terms of the right to claim his/her credit in the main contract. However، in some situations، the ability to invoke credit-transferring agreement is disrupted by the debtor، and he/she، through resorting to objections such as ignorance، correcting the main contract، contractual restrictions of transfer، etc. (as the case may be)، causes exemption or the refusal right to pay his/her debt to the transferee. This issue is one of the circumstances in which a given right conflicts with the International Private Law problems، and therefore، is a place for the considering conflict of law rules. As a result، in this paper، we studied comparatively the rules governing the relationship between the transferee and the debtor in Iran’s law and The Uniform Commercial Code in the view of some International Instruments. It came to light that whereas in these two legal systems and International Instruments، the governing conflict of law rule and as a result، governing law is the same both on the main contract and the relationship between the transferee and the debtor، the obstacles to the invocability principle of credit-transferring are different with respect to this relationship in the mentioned legal systems and International Instruments as well.