فصلنامه پژوهش های فقه و حقوق اسلامی
سال یازدهم شماره 4 (پیاپی 41، پاییز 1394)

Loss of chance theory that related to compensation of damages because of the loss of opportunity has been posed in the world legal community for about half of a century, but there is also the issue of vote violence in this field and there are no judicial precedents. In Iranian law efforts to achieving the criteria for a claim of damages resulting from lost opportunity has not been made. In today's world people`s valuable opportunities that could lead to profit or disposal of harmful in the future has been taken into consideration and waste of them should not be overlooked according to common law. This study aims to find the right solution by using general rules of Fiqh (Jurisprudence) such as rule of negation of loss, wastefulness and casualty and it is based on a rational foundation. By placing it among the most valuable, convertible to money and tangible assets of individuals, the existing doubt prove liability of missed opportunity has been set aside and proper steps has been taken to prepare the appropriate legal ground for acceptance of loss of opportunity as a claim for loss compensation.

In Jurisprudence there are sound approaches about redressing detriment. So the rule that used in Jurisprudence for proofing secondary commandments is based on personal and typical expedient. An instance of these moral detriments is “accusation” or charge of wrongdoing which its adduction is abeyant to demanding of it. According to intent of “no detriment” formula, any kind of sentences that caused detriment is forbidden. So legislative scrutiny primarily, in the step of fixity of responsibility is a factor of redressing detriment for whom accused and redressing and assurance of it in the step of affirmation that conciliation for redressing financially which is not opposed to religion and society expedient is lead to relief and appeasement for wronged one. In this paper, we try to along with introducing principles pay attention to how to use that in the legal events, explanation of this subject, and reviewing and analyzing necessity of making penal law in such cases.

One of the derivatives of the inheritance discussion is the subject of compliance or non-compliance of option inheritance with property inheritance. When some of the heirs are deprived of the property itself, the question arises as to whether or not those persons will also be deprived of the right of option belonging to that property. To answer this question, various opinions have been expressed by jurisprudents. The disagreement is rooted in the concept of option. In this paper, by adopting nullificatory conception of option and illustrating option right’s independence of property and accepting its relationship with contract, the famous theory of the jurisprudents concerning non-compliance of property inheritance with option inheritance is consolidated. This analysis is meant to apply the silence and general acceptance of the civil law to the famous theory. Data were collected through library method and analyzed using descriptive-analytical method.

Nowadays, the equality or inequality of women's rights in the society (both inside the country and abroad) is considered as a significant and challenging problem, and the enemy's wrong inspiration and advertisement called soft war has had a growing influence on creating doubt and suspicion, and women's right of witness have been included among discussions about women's rights. Regardless of the fact that the subject of women's witness is considered among the categories of assignments rather than right, this study has tried to do an exploration on women's right and its acceptable cases. By referring the legal sources and a careful thought, it becomes clear that Priestly women's witness in all cases of financial or nonfinancial matters with some details is accepted. It is not accepted in just a few cases due to the women's nobility and respect, Islam's attention to mitigation, compassion or other specific reasons such as preventing the promotion of obscene acts. Secondly, the inequality of the number of men and women witness, according to the Quranic verses, and because of the vitality of lateral incoming features is limited to the financial affairs and it is ignored in others cases.

Therapeutic abortion is a kind of termination of pregnancy that has medical application. Although act to abort is considered forbidden in the most of the legal systems, but in some cases, exceptionally it is allowed one case in which the abortion is allowed is interference rule. According to this rule, due to abnormality of embryo and keeping mother's health, the abortion is possible before insufflations of spirit and based on single article of Therapeutic Abortion, but in accordance with the single article, after insufflations of spirit, abortion is impossible. Therefore, by virtue of note of Art. 718 of Islamic Penal Code approved in 2013, in order to keep mother's health, the abortion is allowed even after insufflations of spirit. The jurists prescribe abortion before insufflations of spirit for therapeutic cases. Some of jurists believe that even after insufflations of spirit in the embryo, if it would be proved that existing of embryo threaten mother's health, abortion of such embryo is allowed It looks that the jurists who don’t believe in abortion after insufflations of spirit, if state their reasoning based on interference rule- most important – important, then they change their idea. In the other word, intellectually we can diagnose that due to reduce more damage, the theory of abortion even after insufflations of spirit shall be empowered and identified and executed.

One of the current challenges is the issued verdicts regarding the custody of mothers suffering from mental disorders which, due to lack of accurate regulations, causes these people to be categorized as insane individuals. This study is aimed at distinguishing mental disorders from the insanity of the mother so that we could help enact laws and regulations to protect the rights of these persons. Findings of this study are as follow: if the mother is suffering from mental disorders, first the type of mental disorder should be determined for the court and after that her eligibility for the custody of the child should be investigated since mental disorders come under the general term insanity and are categorized into three groups: schizophrenia, minor insanity and foolishness. If the mother is suffering from a mental disorder, her right to the custody cannot be taken away based on their insanity. In cases where the mother is suffering from minor insanity or foolishness, proper mental conditions exist for granting the custody and in some cases even the custody itself can make the mother recover from her mental problem. However, a mother suffering from schizophrenia is not curable and she cannot be granted the custody of children because it may be detrimental to the children in which case she cannot have the right to custody.

Despite the necessity of the principle of binding contracts and respecting the contractual obligations in the legal systems; the effect of social and economic circumstances on the possibility of the fulfillment of the obligations over the period of signing to fulfilling of the contract is undeniable. In fact, contracts are signed under presumably normal and predictable circumstances, however in case of unpredicted and unusual circumstances preventing the fulfillment of the contract obligations; the obliged party is exempt based on the law of different countries including Iran. Nevertheless there is no concrete solution if the unusual and unpredicted circumstances cause excessively severe difficulty or unconventional loss yet allowing for the fulfillment of the contract obligations. Here aided by the principles of “No Distress and Constriction” and “No damage” it is possible to give the right of adjusting or reviewing the contract to the parties or the judge or recognize the option of rescission of the contract for the parties.