عسر و حرج

The fact that the exchange is known and the necessity and fulfillment of the promise is one of the basic conditions for the authenticity of the transaction in Iran's legal system and the Convention on the International Sale of Goods. It may become impossible and difficult for the obligor to execute the contract due to the change in the circumstances at the time of the conclusion of the contract. The obligation to fulfill a difficult and impossible obligation causes undue loss to one party and unjust enrichment to the other party, and disturbs the balance of the exchange, which is not fair and is prohibited based on the rule of "harmless" and "negation of hardship and embarrassment" in order to avoid Inevitably, loss and liquidation of contracts is a solution that should be considered to adjust the contract and its price, which is one of the effects of the change in the situation and the best solution for the balance of exchange and the survival of the contract and compensation methods that can be found in the legal system of Iran and the Convention on the International Sale of Goods. The principles and articles of the civil law were considered acceptable. Due to the fact that the customary profit in exchange contracts is expected by the parties, conventional changes should not create a disruption in the necessity and fulfillment of contract obligations unless the fundamental and unforgivable changes are in custom, but through general legal principles such as the principle of good faith, the rule of harmlessness, Negotiating hardship and inconvenience, price reduction, renegotiation can be inferred and justified by adjusting the contract and accordingly adjusting the price and terminating the contract, which are the effects of changing the circumstances of the contract, and can be

Introduction:

In the wake of the Coronavirus pandemic, the global legal framework has been put to the test, revealing the vulnerabilities of ongoing contracts, such as leases, to sudden and unforeseeable emergencies. These emergencies can disrupt the economic equilibrium of contracts, making the fulfillment of contractual obligations challenging, if not impossible, without necessarily leading to their annulment or dissolution. This paper outlines the potential for adjusting lease agreements under extraordinary circumstances induced by global health crises.

Research Question :

The core research question addresses whether the economic balance of lease contracts, which has been disrupted by the outbreak of pandemics like Covid-19, can be readjusted. It seeks to explore the legal avenues available for such adjustment, particularly in the context of Islamic jurisprudence. This question is pertinent in understanding the extent to which legal frameworks can provide flexibility and fairness in the execution of contracts amidst unforeseen global health emergencies.

 Research Hypothesis :

The hypothesis posits that, contrary to traditional enforcement mechanisms like contract dissolution or termination due to force majeure or other changing circumstances, the legal and jurisprudential foundations of Islamic law, including no harm principle [La-Za'rar], hardship [Osr va Haraj], implied condition, and unjust enrichment, support the adjustment of lease contracts. This approach aims at maintaining the contract while preventing harm to any party involved, thus offering a balanced solution that prioritizes the contract's survival over its termination. The novel concept of "Segmentation of Benefits" introduced in this research underscores the divisibility and interconnection of benefits derived from leased property, providing a foundational basis for adjusting lease contracts in the face of pandemics.

 Methodology & Framework, if Applicable :

The research employs a doctrinal methodology combined with a descriptive-analytical approach to explore the feasibility of adjusting rent in epidemic conditions. By scrutinizing the works of Islamic jurists and analyzing existing legal precedents and theories, the study aims to uncover jurisprudential and legal bases for contract adjustment in the context of lease agreements affected by pandemics. This investigation is structured around a three-part framework: firstly, examining the change in circumstances of lease contracts during pandemics; secondly, exploring the Islamic jurisprudential bases for lease contract adjustment; and finally, clarifying the legal bases for such enforcement. This comprehensive framework allows for a detailed exploration of the subject matter, facilitating a nuanced understanding of the potential for contract adjustment in unprecedented times.

 Results & Discussion  :

The study meticulously examined the impact of the coronavirus pandemic on the economic balance of lease contracts, recognizing the necessity of adapting legal practices to address unforeseen disruptions. The key findings highlight the importance of a dynamic approach to contract law, one that acknowledges the unpredictable nature of such global crises and their potential to render existing contractual agreements inequitable or unfeasible.The investigation revealed that the principles of "no harm," "hardship," "unjust enrichment and abuse of rights," "implied condition," and "segmenting the benefits of the lease contract" provide robust jurisprudential and legal bases for the adjustment of lease agreements in response to the pandemic. These principles collectively advocate for a balance between the contractual obligations and the unforeseen circumstances that may disadvantage one party disproportionately. Specifically, the study found that:  No harm principle necessitates avoiding any contractual adjustments that would unfairly disadvantage one party, advocating for equitable solutions in the face of adversity. Hardship and implied condition principles support the notion that contracts can and should be adapted when fundamental assumptions underpinning the agreement change unexpectedly. Unjust enrichment and abuse of rights principles warn against leveraging the pandemic for disproportionate gain at the expense of the other party. Segmenting the benefits of the lease contract emerges as a novel approach, suggesting that the divisibility of the leased property's benefits can guide the proportional adjustment of rent, aligning with the actual utility received by the lessee during the pandemic.This study underscores the critical role of social solidarity in contract law, especially during crises that affect the fundamental conditions of lease contracts. It proposes a paradigm shift towards viewing contracts not merely as static agreements but as dynamic instruments that must adapt to ensure fairness and equity between the parties. The emphasis on adjusting rent according to new conditions reflects a commitment to preserving the contractual relationship and ensuring its sustainability over termination or dissolution.

 Conclusion :

The research conclusively demonstrates that the adjustment of lease contracts in response to pandemics like the coronavirus is not only feasible but necessary to uphold the principles of fairness, equity, and social solidarity in the face of unforeseen events. It argues against the outright termination of contracts due to the hardships imposed by the pandemic, advocating instead for a more nuanced approach that seeks to maintain the contractual bond through equitable adjustments.  This study's conclusions contribute significantly to the field of contract law, offering a blueprint for navigating the legal challenges posed by pandemics and other similar crises. It lays the groundwork for future legislative and jurisprudential developments that could incorporate these principles into the legal fabric, ensuring that lease contracts remain viable and equitable under the most challenging conditions.Ultimately, this research highlights the importance of flexibility, fairness, and foresight in contract law, calling for a legal framework that is responsive to the needs of both parties and the broader community during times of crisis. The proposed model of rent adjustment, grounded in Islamic jurisprudence and supported by legal principles, provides a viable path forward that honors the spirit of contractual agreements while adapting to the realities of an ever-changing world. In sum, the findings and conclusions of this study not only address the immediate concerns posed by the pandemic but also offer a timeless consideration for contract law: the need for adaptability, empathy, and a deep commitment to justice and equity in the face of unforeseeable challenges.

Leaving marital life without reason by the husband can threaten the consolidation of the family and cause hardship to the wife. One of the ways to prevent such actions in the society is criminalization in this field. Considering the legal gap in this article, we peruse the possibility of criminalizing leaving marital life without reason by the husband, and in what form and under what title is it possible to criminalize it? Considering that leaving the marital life without reason does not provide the wife's main rights, Jurisprudence books have ruled to Noshuz. In this case, the wife advises the husband to return to life. If the advice is not useful, she will refer to the judge. At first, the judge prohibits the husband from this action, if the prohibition does not lead to any result, the judge can punish (ta'zir) the husband according to the expediency and circumstances. If the ta'zir was not useful, judge has decided to divorce But in Iranian law, first the judge forces the husband to divorce, and finally judicial divorce is prescribed.

The present study aims at examining the family laws in the field of judicial divorce, especially the one based on 'osr wa haraj principle in order to clarify its flaws and shortcomings. Most of the cases that are mentioned in the note of Article 1130 of the Civil Code as examples of 'osr wa haraj, besides the fact that they do not reach the level of such 'osr wa haraj making the continuation of life difficult for women, they cannot be considered as examples of 'osr wa haraj; It may be placed under another title such as mo'asherat bi ma'rouf. Also, mentioning these cases as examples of 'osr wa haraj is against the principle of the negation of 'osr wa haraj, and thus causes an increase in the number of divorces in the society. In family life, the husband must either fulfill all his rights and duties well or divorce the wife. A husband's inappropriate treatment of his wife and failure to fulfill his duties regarding her on the one hand, and not divorcing the wife on the other hand, is injustice against the wife. In this case, the ruler or judge issues a decree on the divorce of the woman on the basis of justice and the need to remove oppression and due to establishing justice in the society.

The subject of "Laharij rule" is one of the important rules discussed in jurisprudence. This rule has been argued by both Imami jurists and public jurists. In the light of this rule, it becomes clear that the religion is not a narrow place and the rules of the religion are not contrary to human nature and can be implemented. When we prove the authenticity and validity of this rule, we come to the conclusion that the religion is not a narrow religion. Also, due to the blessing of this rule, disobeying and slacking on God's commands is also rejected. In other words, on the one hand, we use the blessing of this rule that there are no harsh rulings in our religion, and on the other hand, it is used that it is not permissible to suspend rulings just because there is a hardship. If this rule is revised well, it will completely prove the mediocrity of religion for the jurist. Therefore, the rule applies in all chapters of jurisprudence and even in fundamental issues. Even higher, some nonjurisprudential and fundamental issues such as the issue of the legitimacy of repentance and the fact that repentance is one of the ways to get rid of sin, can also be used through the rule of Laharij.

Abortion is one of the important issues that has always been the subject of debate and disagreement. The purpose of this article is study on the conditions of abortion from the perspective of medicine, jurisprudence and criminal law in the light of mother's health. The findings indicate that from the medical point of view, if the health of the mother or the fetus is in danger, it is necessary to perform a therapeutic abortion. In Islamic jurisprudence, jurists have unanimously considered abortion to be a sin and prohibited, and abortion is also prohibited in Iranian criminal law. The the health and distress of the mother is most important condition for the permission of abortion in jurisprudence. From a jurisprudential point of view, if the mother's life is in danger, to abort the fetus before the soul is breathed into the body, citing jurisprudential rules La-Zarar is permissible. The health of the mother is also mentioned in the law as one of the conditions for abortion. In the Family and Youth Protection Law, the conditions of abortion are limited, and cases such as mother's harassment must be determined by the judge, and the mother's request for harassment is not enough.

According to Article 1130 of the Civil Code, the wife can force the husband to divorce by proving her distress in the courts. It is difficult to prove hardship and embarrassment in the courts, and in most cases, women resort to dowry to get out of their awkward situation. By examining the judicial procedure, it can be seen that the votes are scattered; In many cases, the unwritten rule of law, i.e., the meaning of giving dowry to the hardship and embarrassment of the wife, is revealed; In fact, dowry is considered one of the basic pillars of these lawsuits, in other cases, it is pointed out that it is related along with other aspects, and in some cases, a decision is issued according to the amount of dowry. What is important is that the Supreme Court's reference to dowry in divorce proceedings is due to hardship and embarrassment, and this has become a practice. This procedure aims to preserve the foundation of the family and reduce divorce or any other purpose. , there are consequences and social and cultural dimensions that are necessary to investigate. What is examined in this article is the analysis of the challenges of giving dowry in order to prove hardship and hardship and its solutions by criticizing the judgment issued by the court. This writing is descriptive-analytical And the collection of materials has been done in a library and digital way (using the opinions of the Judiciary Research Institute).

The obligation of the couple to divorce by the Islamic ruler is one of the important issues of Fiqh and law in the family, and it is significant because it can prevent the spouse from harm, hardships, and fears in the continuation of married life. Imamiyah and Sunni jurists generally agree upon the legality of the obligation of the couple to divorce, but there are some different viewpoints in the cases and conditions based on the foundation and arguments that have been considered for this issue. Shia jurists, based on the verses (of the Qur'an) and narratives, have considered the abandonment of sexual relationships, as well as the abandonment of giving alimony and misbehavior, to be valid requirements for a couple to divorce. However, the Hanafians, unlike other Sunnis, do not consider it permissible to oblige a couple to divorce due to disfavor or inability to pay alimony, and in the case of misbehavior, only Malikiya consider it obligatory to divorce. In the present study, while examining the arguments and cases of obligation of a couple to divorce in the fiqh of denominations, we came to the conclusion that the main basis of the legitimacy of requiring a couple to divorce is the need to negate the harm and fears of the wife. In other words, if the monopoly of the right to divorce, which is in the hands of the husband, causes loss and fears or hardships to the wife in her married life, after the request of the wife, the religious judge can issue a compulsory decree or proceed with divorce by proving the remarkable loss and harm. Based on this, it is possible to generalize cases requiring a couple to divorce to other cases of loss, including incurable infectious diseases of the husband.

The marriage contract is one of the most necessary contracts. However, the marital relationship is automatically dissolved due to mutual curse, apostasy, foster care, or gender change, and it is also voluntarily dissolved due to termination, divorce, or granting duration in temporary marriage. If the wife is experiencing intolerable difficulty and hardship in her joint life with her husband, she is subject to the rule of negation of hardship. In this case, the dissolution of marriage is considered in the form of annulment of marriage, because this rule, in addition to mandatory rules, embraces status rules including the necessity of marriage. But the jurists have not accepted the annulment of the marriage by the wife due to intolerable difficulty and hardship, because they exercise caution and consider the annulment of the marriage to be confined to defects mentioned in texts, violation of the condition, and deception. But whether this dissolution of marriage is under judicial divorce is dependent on the development of the rule of negation of hardship to non-existent matters in the rulings, which some jurists have accepted and, therefore, prescribed divorce by the ruler in this regard, which is closer to caution. However, according to the jurisprudential pieces of evidence, the prescription of annulment of marriage in the case of intolerable difficulty of the wife is not far from the jurisprudential foundations. Iran's civil law prescribes judicial divorce in accordance with the famous opinion of contemporary jurists in this regard, and accordingly, the effects of divorce will follow such dissolution.

The jurists of Islamic Denominations, while recognizing the right of lien for the wife in marriage, believe that the husband's ability to pay the marriage portion does not affect it. The Iranian legal system, following the well-known opinion of Imami jurisprudence in Article 1085 of the Civil Code, has recognized this right for the wife. Also, the Supreme Court in its decision of unity of procedure No. 708 dated August 12, 2008 considering the application of Article 1085 of the Civil Code and the well-known opinions of jurists, has not considered the husband’s insolvency in paying the marriage portion and apportionment of the marriage portion by the court as an obstacle to the wife’s right of lien. Therefore, the wife can refuse to obey until the last section of the dowry is paid, citing the right of lien. The following article uses a descriptive-analytical method to examine the difference between the concept of lien in a marriage contract with other reciprocal contracts and analyze the views of  Imami and Sunni jurisprudence regarding the reciprocal or quasi-reciprocal nature of marriage, to determine whether the right of lien is exercised completely and similar to other reciprocal contracts, it is difficult to enter into a marriage, and it seems that in cases such as the  insolvency of couple’s marriage portion or the marriage portion payment installment sentence, it can be considered to be abrogated by invoking jurisprudential rules such as the rule of i‘sar and la dharar.

The issue of "validation of the fear of difficulty as a way of difficulty as being Shar'ei (religiously legal)" is one of the issues that have resulted in important jurisprudential works. However, there is no detailed discussion about it in jurisprudential sources. One of the cases where this question is fundamentally raised today is the permissibility of abortion under the premise of fear of difficulty. The question that this paper tries to answer is whether the fear of difficulty is the fulfillment of the duty, and therefore abortion is permissible, or the flow of the rule necessarily requires the actual realization of difficulty and abortion is not permissible. The research method is analytical-critical and from library sources. The existing study shows that there are two views on the issue, and the supporters of each have various reliable reasons to prove their point of view. However, after examining and adjusting, for them, the reasons are that in the assumption of fear of difficulty, despite narrative and confirmative arguments for validity of the rule of difficulty in the assumption of fear, there are no reasons for its invalidity. Due to the existence of the principle of caution in the blood after the birth of the soul, there is no possibility of abortion in the assumption of fear of difficulty caused by the abnormality of the fetus, and caution should be taken but before the soul is released, despite the fear of the realization of difficulty, the rule of current difficulty and medical abortion is permissible.

In this study, since private international law is the reflection of domestic private law of countries in the international context, while discussing the difficulties in domestic law of Iran, it is appropriate to refer to the relevant provisions of international law and if We will adapt the necessity of customs and traditions, social values and family rules of several countries. In case of conflict between the definitions and the laws regarding the issues raised in the case of hardship, it will be stated which court has jurisdiction in the disputed matter and which law governs it, and the description of the cases of marital hardship, according to the law of which country is possible. It is acceptable and how it will be treated through the conflict resolution rule. In Iranian law, according to Islamic jurisprudence, divorce is basically a man's right and a woman does not have the same legal status as a man. The results of this study show that in Article 1130 of the Civil Code of Iran, the issue of family hardship is briefly mentioned that if the hardship is proven, the woman has the right to file for divorce. In English law, divorce is divided into fault-based divorce and divorce without fault, while in Iranian law there is no trace of this division. The laws in Germany regarding family matters are slightly different from those in France, the United Kingdom and Canada, and emphasize the existence of a cold emotional relationship and separation between couples as the main reason for divorce. Divorce in the United States is governed by the laws of the individual in which it occurs. Divorce law terminates a marriage with a legal process passed by state law, and the petitioner or petition for divorce or dissolution is one of the parties.

Deliberate abortion is immoral and forbidden by sharia. It is permitted, however, only in case there is risk in pregnancy or the possibility of the fetus’ anomalies. In the latter condition, the law protects motherhood by resorting to the ‘distress and constriction negation’ principle (usr-o-haraj). The article intends to take a critical look at the issue by exploring the necessity of the father’s consent to abortion, due to the fact that if the mother’s health and survival is at risk, the father’s consent is out of question, but when there is the risk of fetus’ anomalies and the application of ‘distress and constriction negation’ principle, both parents are involved. Here, we are discussing the child’s right of survival that the father has to abide by, and want to prove the fact that if the father disapproves, the therapeutical abortion must not be carried out. Hence the need to revise the law pertaining to the absence of the father’s consent. We have benefited from proofs such as the father’s kinship, his obligation for his family’s subsistence and guardianship.

One of the most important issues that has been less addressed and largely neglected is the effect of extinction in the transaction on the economy with a legal jurisprudential approach; That is, what effect does the abrogation of the option clause have on the compensation in the transaction, and in the event that one of the parties has abrogated his right of choice, and on what grounds can he receive damages? In the present article, the mentioned subject has been studied.

This is a descriptive-analytical article using the library method to examine the question in question.

In this article, the originality of the texts, honesty and trustworthiness have been observed.

The findings showed that the abolition of option clause in the transaction from an economic point of view does not necessarily mean non-compensation and in the light of jurisprudential rules such as the Rule of prohibition of detriment and the rule of Indigestion and embarrassment and legal principles such as unjustified possession, it can be accepted that despite It is still possible to cancel the right of termination, compensation.

The right of option clause is revoked if it is realized that option clause is only a means of compensation and with the elimination of loss, t

The difficulty of enforcing contracts and their effects have been much talked about in legal writings. Nevertheless, the theory of "Hardship" has not entered into our civil code. This gap between theory and pointless practice have many reasons. However, the legal validity of these rules and the possibility of invoking them in the courts has been less discussed. Of course, the court's ruling must be reasoned and documented by law, and other sources. Legal principles are one of these sources. Numerous principles such as loss, denial of embarrassment, observance of good faith, prohibition of encroachment on property, prohibition of abuse of right and prohibition of profiteering in emergency situations, can justify the cessation of the execution of the embarrassing contract and, consequently, the performance guarantee Appropriate such as termination of contract, modification of contract and suspension of performance of obligations is possible. Especially because due to the novelty of the subject, its ruling cannot be found in jurisprudence sources.

Talfiq (integration) is defined as a combination of the different views of religious scholars which is not fully consistent with the exact views of any of them. It is aimed at facilitating religious assignments. Therefore, Talfiq enjoy commonalities with Taysir (facilitation) as a tenet in Islamic tradition and under rules such “removal of constrictions” and the “Yosr rule”. On the other hand, however, Talfiq may take place to relieve the religious obligations of an obligated person or actually lead to such a thing. .Some religious scholars believe that integration over a Fatwa is allowed in case of necessity since it leads to openings as well as removal of constrictions. Others have considered a wider application for Talfiq, arguing that it is allowed not only when necessary, but also when needed. It is evidenced upon Taysir (facilitation) and removal of constriction that could be applied to the relevant obligator. It seems that Taysir and Talfiq overlap each other, because every case of Talfiq is not necessarily considered as Taysir, and every case of Taysir is not necessarily categorized under Talfiq, although all cases of Talfiq ensure Tatsir in practice and especially in contemporary Fatwas.

Husband who do not perform certain duties such as payment or sexual relations, cause marital maladjustment and ultimately causes the wife to be dammaged. Despite the attention to this subject in Qur'an, traditions and Shia jurisprudence, it is not well known in Iran's laws and jurisprudence.when a husband does not perform his duties while he has ability to do so, there is a disobedience. Refuse to pay or to have sex, abusing sexuality, being indifferent etctra are examples of disobedience. In current laws financial obligations have been guaranteed by effective performance and even punishment, but there is no guarantee for effective implementation of non-financial obligations such as having sex. On the other hand, on the basis of the current rules, it can be considered that the husband's disobedience leads to distress and constriction of his wife. And on the other hand, this is the violation of the general obligation of Good companionship, so judges for Preventing uncertainty and suspension of wife, can issue divorce, even without proof the distress and constriction. It is also possible to take a more fundamental step by identifying the disobedience in Iranian law, specifying the examples and guaranteeing its implementation.

In Islamic family law, the right to divorce is granted to the husband in the first place and the husband’s right to divorce is a jurisprudential fact. Nevertheless, the Holy Shari' has also, as a secondary sentence, entrusted the divorce to a judicial institution with the fulfillment of some conditions, which has been referred to as "judicial divorce". Determining the cases of judicial divorce, its conditions and scope, as well as its nature, whether it is retroactive or final, requires jurisprudential-legal precision, which in the present study, in a descriptive-analytical method, has been investigated after proving the legitimacy of judicial divorce. Considering the reasons for the legitimacy of judicial divorce, the need to respect the interests of the family and the rights of the parties and the opinions of jurists, including Shiites and Sunnis, we came to the conclusion that judicial divorce should be considered as a type of revocable divorce, with the difference that in this type of divorce, in both divorce and recourse, the ruler is the guardian of the wife, and therefore the possibility of recourse must be at the discretion of the judge.