نشریه فقه اهل بیت
پیاپی 84 (زمستان 1394)

This article studies the issue of the defendant refusing to swear and refusing to pass it to the claimant which is a disputed issue among the jurisprudents. The author has investigated the issue from both aspects of practical principles as well as evidences, enumerating ten possibilities for the necessity of referring the swearing to the claimant if the defendant refuses to swear. However, the author has criticized all of them then enumerates five possibilities to consider the refusal of the defendant as sufficient. Rejecting four of these possibilities, he finally accepts the fifth possibility which is reasoning based on a tradition narrated by Abd al-Rahman b. AbiAbd Allah.

The state of the contracts by a person diagnosed with periodic insanity in a time when it is doubtful whether the person is sane or insane and whether the contract is correct or not, is a matter of scholarly dispute. Where the jurisprudents have different opinions and there is no clear law in this respect, the judiciary system will have different rulings. The contract can be said to be correct based on the avoidance of making the contracts unstable and the principle of correctness (isalat al-sihha). On the other hand, it can be said that the contract is void based on the principle that the contracts are void and that we should protect the financially incapable persons. Different possibilities have been proposed in jurisprudence in this regard which will be briefly discussed. It seems that through interpreting the laws and legal analysis, we should prefer isalat alsihha. The judicial system also has some opinions in this respect.

It cannot be proven that wearing tie is exclusive to Christians and that it has been adopted from the Cross. On the other hand, there is no evidence proving that it is haram (prohibited) to dress like the unbelievers to consider the tie as an instance. It is not proven to belittle the believers, be an instance of wearing a dress to show off or propagate the western culture. It should also be taken into account that the weakness of the reasons provided for the prohibition of wearing the tie will not only fail to prove the prohibition but also indicate that there is no proof for its undesirability.

There are two approaches among the faqihs about the criteria of acknowledgment of Khabar-i Wahid and its issuance by the infallible (a): first, issuance authenticity which presumes the authenticity of issuance of a khabar (a report, tradition etc.) through any reasonable means; second, evidential authenticity which presumes the document of khabar as the only means to find its authenticity and if the document is weak, it does not accept any other means for its authenticity. Those who believe in each of these two approaches have provided reasons from the intellect and from narrations as well as the procedure adopted by the rational individuals. Having mentioned the reasons of both sides, the author has criticized the evidential authenticity and has accepted the criterion of issuance authenticity. In the final section of the article, the scientific implications of both approaches have been investigated in detail to clarify the importance of such criteria.

It is undeniable that Imam Khomeini's opinions about ghinaand music has gradually developed and transformed, especially after the Islamic Revolution, due to the necessities of his time and the dynamic nature of his jurisprudential ideas; however, it should be studied that in which area his ideas has developed. The change in Imam Khomeini's opinions has only occurred in his spoken words, all of which relate to the quality of the music broadcast from IRIB. In claims by later thinkers, a mixture has occurred, knowingly or unknowingly, trying to consider the shari subject of ghina from Imam Khomeini's viewpoint as the main point in the development of his jurisprudential views about music. This article proves that in his words in Makasibmuharrama, Istiftaatand his speeches, Imam Khomeini has introduced mutribsound [that moves the person] as the subject of ghinain shar'. The only case in Imam's words which has been misused to prove that his opinion about the subject of ghina has changed is a statement in Tahrir al-wasilain which the subject of ghina has been considered as a mutrib sound suitable for parties. This statement can be interpreted and cannot negate numerous written and spoken words of Imam determining ghinaas mutribsound. Through a comprehensive and precise comparison between Shaykh Ansari and Imam Khomeini's ideas, the author believes that both thinkers maintain that mutirband lahwisounds are interrelated; i.e. mutirbsongs/music are necessarily suitable for parties held by sinners (The opposite is not true). That is why the term, lahwi, used in Tahrir al-wasilais an explanatory word (not an independent one) which only indicates that mutrib sound corresponds to music parties by sinners. On this basis, the claim that the subject of ghinain shar' from mutirbsound to mutriblahwisound in Imam Khomeini's though lacks enough evidence.

A form of theft is internet theft which has spread in the contemporary society due to technological advances and its damages may surpass those of traditional theft. The ruling of this kind of theft has been discussed by few jurisprudents due to its novelty. Some of these jurisprudents have ruled the thief to deserve the haddif its conditions are met and some has ruled for tazir. There is no doubt that the conditions leading to haddare present in internet theft, therefore, according to reasons such as the absoluteness of the verse of theft and traditions narrated about the execution of haddon the thief as well as finding the common roots, we can say that if internet thieves break into a computer through cracking a lock and steal data which is considered as personal property of its owner, the hadd will be executed on them.