priority

The conflict is one of the issues involved in the process of jurisprudential inference. Different bases in the way of resolving the conflict between the Shariah evidences and its sub-issues have a significant impact on the differences between mujtahids' fatwas. One of the micro issues in the field of conflict resolution is the validation of preferences in this field. A notable practice among jurists is to prefer and prioritize a narration that includes mention of ta'leel. Of course, the preference of the reasoned narration has opponents among jurisprudential and principled thinkers.Considering the importance of the conflict issue and the widespread use of this type of preference, this article aims to investigate the preference of causal narratives using a descriptive-analytical method.This research, with the premise of giving permission to non-textual preferences, has examined the terms validity, quality and preference condition of the narrations. Then, by searching the words for and against this preference, it has extracted and examined their evidence. The supporters of this preference have cited the strength of the appearance of the reasoned narration compared to the narration without explanation and more suspicion of its issuance. On the other hand, the objection of the opponents is the non-acceptance of the power of emergence and the lack of evidence for the validity of such a preference.Regardless of the fact that prioritizing news with reasons in the event of a conflict is a well-known practice of jurists, it seems that this type of preference is acceptable under one condition; that is, the reasons mentioned in the news are rational and not devotional.

One of the lesserknown institutions in our law is the institution of "priority right of gaining ownership", which is very important to know its nature. Determining whether any authorityis a right or not has several legal implications. The present research aims to provide a general theory about the priority right of gaining ownership while stating the scattered rulings in the laws and analyzing them about the mentioned institution. In this article, firstly, the special nature of the priority right of gaining ownership and then its elements are analyzed, and finally, the possibility of voluntary and involuntary transfer (inheritance) is examined. The result of the research is that we consider the priority right of gaining ownershipas a kind of right that is created under the protection of the law, and its owner creates the legal effect (gaining ownership) simply by declaring his will, and others must declare and express the will of the owner in front of it. To comply and obey. The privilege of this authority (sovereignty) over the permission (or the general freedom and ability) is that it is dedicated for a specific person and this person has priority in using it.

In lease contracts where the landlord grants the tenant the right to build construction or planting trees, article 504 of the Civil Code provides for the right to retain the accessions after the expiration of the lease, following one of the two main jurisprudential views. But it leaves unanswered the question of whether or not the tenant will have priority in re-leasing by owning the accessions. Jurisprudential and legal doctrines have also sufficed to examine the right of retention of accessions. However, the tenant’s priority in re-leasing the area can be considered as an implicit customary condition, as the judicial and administrative procedure has a serious tendency to recognize this right. Moreover, the priority in renting due to the ownership of the standing property also has a legal background.

The right of precedence deals with the relationship between individuals, objects and places. It is a rational phenomenon, approved by the Sharia. Some scholars believe that the nature of the right of precedence is moral priority while others take it as an obligation. Still there are scholars who view it as an objective right. The realization of this right results in ownership or the right of precedence. There is a difference between Imamiah (the followers of the twelve Imams) and Sunni jurists as to whether the right of precedence causes ownership or the right of precedence. Sunni jurists believe in the absolute ownership and refer to narrations related to the revival of the dead lands as their proof. Imamiah jurists, on the other hand, accept ownership in some cases and the right of precedence in others because there is a consensus on the absence of absolute ownership. The jurists believe in ownership in cases such as taking possession and the revival of the dead lands, agriculture and the writing of scientific works. This study concludes that the right of precedence is an example of objective rights which include all the effects of this right, such as not allowing the violation of the right, the necessity for compensating the damage caused by the violation of the others’ right, etc. This article aims at explaining the nature and effects of the right of precedence. Meanwhile, based on library sources and by using analytical and descriptive methods, we will examine the views of the parties on the subject.

Article 9 of the Uniform Commercial Code of USA is recognized as a model for other legal systems by anticipating developed regulations on the security interest in movable property. One of the essential features of this article is the rules on the enforcement of the security interest and the priority of the holders of rights in a same collateral. On this basis, if debtor defaulted, the beneficiary of the collateral may personally, without interference by the court or other official body, enforce the security interest and repossess collateral to foreclosure or sell it as consideration of the debt or part of it. Performance of the conditions, such as non breach of peace, the reasonable conditions of transfer and foreclosure, is mandatory and the violation is warrantable. In relation to the priority of holders of security interest, a creditor who has perfected and registered his right prior to others, regardless date of conclusion of the security agreement. In Iranian law, action to official authorities is only way of enforcing security interest in movable property. Priority exercise on the basis of the precedence or delay of the date of conclusion of the security agreement. due to the lack of a filling system, the establishment of unified systems for registration of security interest in movable property, priority over time and granting of the right of self enforcement the security interest to the beneficiaries by considering the responsibility is offered, in order to develop the security in the movable property and financing.

The matter of right of priority has long been an important one and needs more attention. When trying to understand the nature of the right of priority, we should not merely limit ourselves to exceptions such as the right of stone-fencing or the right of precedence; but try to elicit the rulings and common matters regarding them through studying and understanding the examples and types of the right of priority.In this study, using a comprehensive theoretic perspective, we have worked on the matter of right of priority and its nature through identifying and studying the types of right of priority, paying attention to the singularity of the owner, and hence, providing its rulings and common questions.However, besides the examples of right of priority, rulings, and other matters regarding them such as forced and voluntary transfer of the right of priority, dropping it, and its demise in the case of the delay in executing it, have been studied. Also, the responsibility of the owner and the inhibitor of each pre-emptive right is specified.

Sometimes people have priority to others due to having the right of Priority In conducting a legal action or demanding the fulfilment of right of a certain property. Sometimes the legislator has considered it for some reason for some persons in a particular position. The right of priority is protected by the legislator, and sometimes it is explicitly forbidden to opposing contract with it. However, the guarantee of this ban, there are disagreements between jurists and lawyers in the cases stated. Some believe conclusion of opposing contract with priority is void; in contrast, some are considered valid, in the end, others they have chosen the middle solution and they believe that the deal is not affected. In the examples of priority, the overall conclusion is that opposing contract with priority is un enforceability to third party; Because these transactions have all the components of the contract, except that there is a barrier to their influence, and that obstacle is the right of priority of the beneficiary, which, in the event of the subsequent payment of his rights, automatic be valid. Accepting this guarantee solution will not only supply the rights of the rightful owner butalso the rights of the parties.

That outer piety is necessarily a valid criterion for measuring the status of human beings in the sight of God Almighty cannot be claimed, but this criterion is inevitable for measuring the merit of individuals in holding public offices. Lack of knowledge of the inside or conscience of the individuals makes us inevitably resort to external criteria and outer requirements to measure the worthiness of the individuals. Rationally, people who possess the hallmarks of outer piety are also more likely than others to hold public offices. However, the narrative and rational documents show that the existence of such indicators will not reduce the need for supervision during the responsibility, and the mere existence of such a criterion in individuals cannot be an excuse to neglect their monitoring. In addition, one of the important points in using the criterion of outer piety is to correctly identify the qualifications of this criterion and the priorities among these qualifications. According to the narrations, attributes such as trustworthiness and honesty are among the most important criteria in recognizing outer piety. Also, in the event of a possible disturbance in the conditions of outer piety, the criteria that have more relevance to holding public offices have priority.

One of mrjhaty in the conflict to favor one of the two mtzahm given priority when that must be the first priority in terms of time on recent obligation. In this case, some scholars have issued a fatwa in the priority vow and if you can afford Some people vow to disband and hand the case in question beyond the scope of known tkhssa and some power derived not accept the Hajj as religious power.
In this paper, a complete analysis of the arguments of the parties have explained that criticisms of the priority given to vow a vow should know prior to the act of Hajj the point is neglected and that "elevated when" when as little disturbance of the relevant there is no other property that later would prefer and here on the premise that conflict to accept the Hajj later, it is still important because of the characteristics that would make the pilgrimage should be on the front vow because the mere existence causes Takd elevated in severe criteria of necessity is not in dispute.

One of the most important issues in the Islamic jurisprudence bases in the problem of conflict of the reasons that has always occupied a chapter in the books of the subject among the issues of which are the ways of reconcilement the true understanding and analysis of which can guarantee the accurate application of the Islamic orders. The principle of Reconcilement applies between two reasons the validity of which is complete (in terms of both the document and the implication) and at the first glance they seem to be contradictory but reconcilement of them is better than rejecting them. The controversy about the principle usually arises about two matters: 1. what kind reconcilement is meant by Reconcilement? 2. What are the proofs of it? One kind of the reconcilement is reasonless reconcilement that is solving the conflict between the two reasons with no evidences. But this principle does not include this kid of reconcilement, since it refers to qualitative justifications for validity of which we have no proof; otherwise there were never conflicts between reasons at all. Another kind of reconcilement is the practical one that is partial application of the both conflicting reasons. This one is also out of inclusion of the principle; since it leads to definite disobedience of the both the reasons and entails a kind of chaos in jurisprudence. Therefore, the customary reconcilement is intended by the principle. Customary reconcilement is a reconcilement in accordance with the language rules and accepted by the people of the language and the community. They have argued by the Qur’an, tradition, logic and the manner of the intellectual to prove this principle.

One of cases among circumstance which is discussing in methodology is reputation of fatwa. The jurists of methodology only argue in its authority and lack of authority. Whereas the access to the fatwa of great holy jurists is also discussed. Hence, Sheikh Ansari in his book " Rasael" has defined the reputation of fatwa as the options of great jurists. The author's opinion is that the access to the ideas of great jurists who are famous and non- famous is impossible for some reasons such as the idea of anonymity of jurisprudents, dissimulating against fanatical ruler and deletion of the most written works. Hence what we call reputation of fatwa in methodology book is infrequent fatwa of jurists. It emphasizes the fatwa of famous jurists. But this fatwa is not proof of reputation of fatwa.

The Patent Right is a rational validity that is established between a person and an object or a place. There are some arguments and disagreements about the nature of the patent right‒is the financial right considered a kind of possession, kingdom, or priority? Also, there are some disagreements about proving such right and to prove this matter, some reasons such as consensus, narration, associating with someone, and the practice of the wise are cited. Some of the issues about which the Patent Right is considered are as follows: the Patent Right in unclean entities, the decline of entity from taxes and possession and the Patent Right towards entity after compensating the damage (giving substitution), the spiritual ownership, and the priority right. The provision of the realization of the Patent Right is its benefit and the existence of exploitation. The disturbance or seizure of the Patent Right without the permission of its owner is unlawful. Also, the exchange and ownership of the Patent Right freely through gift, will, or devotion is correct. Due to its kind, the end of the Patent Right is different.

In new era with the loosening of patriarchal and extended family foundation and the increasing popularity the nuclear families, about natural guardianship mentioned in Iranian Civil Code, has been emerged some questions and problems. Articles 1180 and 1181 Iranian Civil Code provides: "a minor is under the natural guardianship of its father or paternal grandfather". In Iranian Civil Code does not natural guardianship right to her minor child. In year 1353 the Iranian legislator understand this problem and enacted Family Protection Act and in article 15 provide the special natural guardianship for mother. However, this rule did not last and after the rescission of this rule, paternal grandfather alongside of his son was special guardian of his grandson. In year 1391 Family Protection Act for granting the natural guardianship right to mother has taken a fresh step. This rule confirmed by Council of Constitutional Guardians. Hence we in this article decide with answer to following question, prove our hypothesis: whether position of natural guardianship is able concoct for mother? Whether this position in case of encounter to natural guardianship right of paternal grandfather is precedence? Hypothesis of this paper is that after death of father natural guardianship right is belong to mother and she has guardianship right to her minors. This guardianship is precedence than guardianship right of paternal grandfather. In any case that father has guard to minors, as well as mother has this right. Her guardianship is parallel to father guardianship and preeminent than paternal grandfather guardianship.

As a descriptive-analytical research deploying a library and documentary methodology, this study has mentioned the classifications of priority and has stated the problem of the study and has defined the key terms operationally. Finally, four types of priority have been distinctively presented:1. Custom or verbal priority which is divided into two kinds of enunciative and conceptual priority
2. Rationalistic or definitive priority. Certainty priority is also annexed to this type.
3. Consensus priority.
4. Speculative priority or analogical deduction
To investigate the conditions of the authority of priority reason, it was revealed that affairs such as “lack of disagreement of precept with generality, the rule with the primary principle” and “exclusiveness of the cause” do not matter in this regard, while the following are essential: 1) nullifying the features 2) proving the cause of precept 3) proving the perfectness of the cause 4) proving the existence of the cause in the secondary 5) proving the strength of the cause over the effect in the secondary. Studying the aforementioned factors revealed that among the types of priority, merely the speculative priority or the analogy of priority would be invalid. The main feature of this type is that it is speculative and there is no verbal realization in it.

Guardianship of children and observation over their education and various issues until they reach the age of puberty and development has been studied in Shi’ite jurisprudence under the title of custody (ḥiḍānat). Due to the importance of the above matter, different debates have been done with regard to the time of granting the custody of a child to one of the parents. Having been done with descriptive-analytic method, the present study covered various ideas and opinions of the jurists and came to the following Firstly, the custody of children is a collective obligation (wājib-i kifā’ī) of the parents in order of priority and the mention of a specific age and time in narrations does not concern the exclusiveness of the child’s custody to one of the parents and his/her obligation. Therefore, the transfer of custody with the consent of the parents and their eligibility or in suitable and appropriate condition would be possible and it mainly indicates the priority in assuming the said obligations. Secondly, the priority of the mother for the custody of her child, whether a boy or a girl, is until the age of seven.

Other than its sense of ownership, domination sometimes refers to hypothecation and priority right. This is applicable to cases where there is no legal or customary value, or the owner is unknown. The validity of transactions depends on ownership of objects and specified values. In some cases, an object is not considered a property or owned by anyone, but the transaction will be valid and the price will be paid. The price basically serves the hypothecation, rather than the object left without any owner or value. In addition, the notion that some objects are value-less just because there are no benefits seems quite controversial. Many of those objects have, owing to human knowledge and modern technologies, can be converted into beneficial materials and even vital for everyday life, natural environment and other creatures. In the fiqh literature, there are no explicit scripture to prove hypothecation in foul objects. This right, and even the subsequent ownership, can rather be proven based on analytical commentary of how foul objects are purchased as well as the methodology of scholars and other evidence. In the rest of cases concerning hypothecation, however, there are authentic, explicit evidence available. Similar to other items subject to ownership and value, this right is supported by legal concepts such as validity of purchase, inheritance permit and validity of will.

When there is a title retention clause، the seller is the owner of the subject of sale. The buyer، might yet، sell the same chattel to a third bona fide person. In the conflicts of the interests of the owner and bona fide purchaser، the right of one of them should prevail. Iranian law and its religious background always prefers the right of the owner and neglects the right of the bona fide purchaser. In an international level، however، it is not so. Sale by non-owners is allowed in some systems of law. This article considers different kinds of title retention clauses and the rights of the owners and bona fide purchasers. Economic analyses of these rights lead the writers to support the bona fide purchasers. This would help the interests of the economic efficiency of the commerce as a whole. Opportunity costs would be lower and growth of the commerce would be more. This will amount to development of the countries which، in turn، would amount to the wealth of the universe as a whole. The rules and regulations should help to make the life of the people and merchants easier. The reasoning given in this article serves to support the bona fide purchasers، in order to reach the appropriate goal.

By emerging the Islamic revolution and forming the system based on the theory jurisprudential leader, the Shia jurisprudence entered a new phase of thousand years of life. The result of the mentioned theory not only of changing the available former executive structure but the result was in addition to changing the object was to alter political system, Pivotal ideological changes that Influenced various sections with corresponding power (sovereignty). Current governmental model has formed and the principles of the intellectual part allocated to the contemporary political literature. One of the subjects that can be said in political literature to modern general meaning has no background is the issue of governmental resolution. Although this issue cannot be said has no background in the last jurisprudential texts but in the unique present meaning is to a large extent new. This is an issue both in terms of the principles of the theoretical and practical results to significantly, Still worthy serious study and follows. This present article by studying its concept of knowledge is trying to position it in contemporary Shia political jurisprudence.

The 'right of appropriation' is one of the important juridical institution which has not been independently discussed in juridical books and only when its instances have been discussed, a brief explanation has been provided for it. Thus, to clarify its legal nature- what kind of right it is-, its causes, rules, and effects, the author has discussed it and come to the conclusion that the right of possession is an objective one; but, since itsrules are different for different subjects, it is not an absolutely objective right. On the other hand it is a right established for a person in an object which is not owned by him, but he is permitted to possess it. Thus, others are not entitled to manipulate that object. The difference between it and the right of exploitation concerns causes and subjects of the two. The most important causes of the right of appropriation are as follows: annexation, planning, revival, and allotment. Rules and effects of the right of appropriation have been considered according to its subjects. Its most important effect is prohibition of other's possession in a subject in which one has the right of appropriation.

When the Islamic Judge announces a debtor incompetent of invading his properties and judges him as bankrupt, creditors find a right about his wealth and they can take what the debtor owes them from his wealth. But, the point at issue for researchers, at least at first glance, is whether all creditors are equal in this right, and whether there are priorities for some of them. Islamic jurisprudential texts suggest that there are differences between them, since there are cases in which some creditors are preferred to others and have, so to say, some sort of priority. In these cases, the priority is based on criteria found in Islamic jurisprudence ,some of which we point in short: superiority of right, precedence of right, priority of essentially established right to accidentally established right, priority of rights resulted from will to rights not resulted from will, and right’s being daily.  In this dissertation, relying upon principles such as the equality of the rights of creditors, justice and fairness, and other points found in Islamic jurisprudence, I will examine the reasons of the priority of some creditors to others and, criticizing giving priority in some cases, I will reject some of them such as the priority of the right of the seller as to the very sold thing and ….