مجله پژوهش های فقهی
سال یازدهم شماره 2 (تابستان 1394)

It must be understood that some sins, namely those actions that are or are felt to be highly reprehensible or immoral acts considered to be transgression against divine law, such as a fasting man who has coitus with his wife during period of the month of the Feast of Ramadan have the punishment of doubt to be either HAD or TAZIR. The reason why is because on one hand, these punishmentsaredecreed and predestined for certain crimes, and on the other hand many Fokaha’s believe that those who commit these acts deserved to be punished with TAZIR. Since determining whether to be HAD or TAZIR can lead to substantial effects such as permission to intercede in HUDUD, lack of bail or guardianship, lack of swear in HUDUD and many other ones related to HUDUD and TAZIR, it is necessary to determine whether the penalties are considered as HAD or TAZIR? Studying the nature of both HAD and TAZIR, the authors came to the conclusion that these punishments are classified as HAD punishment due to many traditions expressing the contrast between HAD and TAZIR. If there is doubt of whether the HAD or TAZIR is to be administrated, as many FOKAHA believe in TAZIR, the lenient in the sentence can be used for both HAD and TAZIR crimes due to the form of punishment which is based on extenuation, connivance, renouncing and respect the sanctity of Muslim blood

Can the liberty of property be considered as a general and independent clause in the Sale contract? How do Shiah and Ahle Sonatand Iranian legal system deal with this problem? They answer to the problem variously: Some Imamieh scholars take it into consideration as a general and independent clause, but some scholars take it as a general but nondependent clause, and finally, it is not general and not independent clause in the third group’s point of view. This paper deals with the latter of the three viewpoints. Sunni scholars working on this topic question the originality of the subject, and their interpretation is based only on the condition that the property is fully owned, or having a full control over its delivery, or finally in the condition that the preventive rights are missing.The author believes that Specific evidence explaining the preventive rights (such as in Waqf or rent/mortgage), doesn’t represent the general clause; on the other hand, selling a non-free property has nothing against reasonability, and a reasonable man would not avoid such dealings; therefore, there’s no proof to refute it. As a result, there would be no room to accept the necessity of liberty of sale as a general and independent clause.

The principle of self-defense and retaliation created in order to protect people at risk of invasion and to comply with the conditions of human nature has a long history. According to Islamic law also pay special attention to these issues and the abundance of evidence indicates that these institutions. These institutions in spite of similarity in the evidences and matters but they differ in terms of right and duty, response time and requirement of proportionality between two institution.

One of the terms of the accuracy of the condition is its legality. Sometimes, there is doubt in the legality of the condition that is mentioned in the contract. For such doubt we can mention several origins. Among other things, this includes making doubt in regards to legislation and divine law which is contrary to the condition. Another of them includes making doubt about the quality of legislation, i.e. whether legal or divine law is obligatory or non–obligatory. However, the question that is considered is that: Which principal in circumstances that there is doubt in the legality of condition is predictable? This inquest, with study of the matter in jurisprudence and law and critic and study of different juridical and legal opinions has obtained to this conclusion that to allege the solution should pay attention to the origin. If doubt in the legality of condition is of doubt in the existing of adverse legal or lawful order, the way of termination of doubt is applying the principal of the non–existing of legal or lawful order. Of course, applying the mentioned principal only is admissible while that notwithstanding enough searches there isn’t adverse legal and lawful order, but if the doubt has been created of the ambiguity in quality of legislation of the legal or divine law (obligatory or non–obligatory order) applying the principle of invalidate of condition is seem to be stronger.

social problems resulting from high dower is clear for researchers, but the issue which is necessary to consider is: lawful techniques for solution of this social challenges. Well-known theory between jurisprudents is that delimiting of dower is unlawful. However "seyedMorteza" believed that dower at most should be most should be at level of dower of "hazrate Zahra" which is called "mahro-sonna" in Islamic jurisprudence. and dower that be more than it, turn to it automatically. "seyedMorteza" invoke to a narration (Hadith). Another jurisprudents said the narration purely show the priority.in this article we submit some techniques for solution of high dowers by analyses the theory of "seyedMorteza" and well-known theory. the theory of "seyedMorteza" is not acceptable, but delimiting of dower by take a tax is lawful and legitimate.

Dellberation in reality and quiddity of basic concepts of areas of inference, jurisprudence and law, especially concept of legal verdict has been one of the oldest apprehensions of clear-sighted scholars. But in spite of importance of this subject, effective effort regarding it has not been done. In order to answer this demand in this paper, we have studied three theories propounded on reality of verdict, i.e., theory "address", theory "convention" and theory "legislation of legal verdict", and have regarded principle legislation as basis of laws and verdicts, and have criticized theory "convention" because of unconsideration to unconventional levels of verdicts in description and analysis of verdict, and theory "address" because of not conveying meaning obtained from reality of verdict. The verdicts have legislated considering observation on real good and bad purposes and on creative levels of will of legislator.

The Quran refers to Jews and the Christians as “Ahl al-Kitab,” or People of the Book, also sometimes uses the term, namely "those who have been given the Book". Accordingly, some verses are used to drive the social and individual rulings regarding this application. Now, the question is that whether it has been used as a limited and closed application and only the followers of these religions are included or it is possible to present a criterion to generate this application to the followers of other religions too. All commentators and jurisprudents have reckoned Jews and the Christians among" the People of the Book" and the absolute majority of them have counted Zoroastrians, in accordance with Islamic traditions, among the People of the Book, but while we are examining the sacred Books of these three religions, we will find out that based on every criterion being taken into consideration, the followers of some other religions may be included as" the People of the Book" as well. The main word of this article is to state that if we put Islamic texts report about the status of these religion's Books and the outer information together as well as general divine words related to the divine guidance of human beings, we will be able to achieve a common criterion and standard that exists in other religions too and this standard will help to include the followers of some other religions as" the People of the Book" as well...

There are three elements to identify the responsibilities of each party, loss, harmful act, and causality relation between the act and losses is essential and in among these three elements the third element has special importance and lack of proof of this element carries lack of responsibility. Finding this relationship in the presumption that agent of loss is inconclusive between specified persons is difficult. Some in this presumption believe that because of lack of causal relationship there is no responsibility that this is not according to justice. But in this assumption there is responsibility and as result the responsibility is proved and the only issue is that losing acts exist in the same time so unpredictable of loss is probable. So with prove of responsibility in respect of compensation different methods are suggested. some accept the option of judge in choice of the liable person, some believe that compensation should be paid by beyt alma. Some believe that for specify the final liable should take action via ballot. Other group states that by rely on equity rule, distribution of liability between individuals is possible. In the view of statute law, duty of this subject has not been expressed but exact analysis of this subject and also existence some ground in relation to inconclusive cause in Islamic criminal law (section477 and 479) and possibility of contagion of these issue to civil liability of inconclusive cause show that joint and equal liability of agents. is cause.