فصلنامه فقه و اصول
پیاپی 115 (زمستان 1397)

There are two major viewpoints in jurisprudence concerning the analysis of the nature of delictual liability (ḍamān-i qahrī). One viewpoint analyzes liability based on mere damage and the other based on delictual exchange. What is meant by delictual exchange in regard to delictual liability is that the ownership of the wasted property is, by order of the judge, handed over to the perpetrator of the damage and the ownership of its substitute (badal) to the person who has incurred the loss. With this analysis, the delictual exchange of badal and mubaddal (substituted) is by the judge’s order, whose approval has significant impacts in the field of civil responsibility. For instance, according to this disposition, the components left over from the wasted property and the due rights belong to the perpetrator of damage, or in some instances that the usurped property is utilized somewhere and is valueless due to separation, the person who has incurred a loss merely deserve demanding its substitute and cannot ask for the very usurped property besides the damage. Similarly, acceptance of delictual exchange can be resulted in presentation of a new theory concerning the nature of ḥaylūla (lit. break or separation) substitute under the title of exchange of the inaccessible property’s benefits and the substitute.   

The fact that divorce is a right, vindication of which is legally granted to men and which the Iranian civil law has asserted in article 1133, is on the condition that man’s relation to the woman follows its natural procedure. In case there is a man who would neither fulfill marital duties nor consent to divorce, then what is to be one? Does the woman have to tolerate her husband’s transgression till the end of her life? In this case, can a judgment be made obligating the husband to divorce her with reliance on the rule, “Necessity of abstention by virtue and repudiation by benevolence”? Is the above principle also applicable to the case in which the husband’s evading his marital duties is out of impotence and disability? Using the analytical-descriptive method, this article is intended to find answers to these questions. With a survey of the jurists’ various viewpoints, the conclusion is made that the principle denotes that in married life, it is necessary for the husband to choose one of the following two ways toward his wife: either fulfill all rights and duties in a properly and competent way or leave her. This principle is general and comprises all the wife’s rights and there is no difference between the husband’s voluntary or natural shortcoming.

The value of credit money decreasing over time; but for some reason it may be increasing, as well. Given the decrease of the money value, there are clear jurisprudential views about amount of payment of the debt on due date; however, given the increase of the money value, what amount should the debtor pay? Answer to this important question is on one hand subject to accurate study of the dimensions of credit money and on the other hand to providing clear jurisprudential proofs.The hypothesis that this article is seeking to prove is that the purchase power of money in debt is the criterion for fulfillment of right in case of increase and decrease of money value. Therefore, in case of substantial increase of money value, payment of less nominal amount of money than the money received is unobjectionable; but in case of slight increase of money value, payment of the nominal amount is considered as full settlement of a debt.  

There are five legal (uṣūlī) issues posited in legal theorists’ (uṣūlīs) statements as principles effective in theory of the relation change (inqilāb-i nisbat = change of relation between two conflicting reasons in the face of the third). The claim brought up about the issues in question is that the kind of principle accepted in any issue is effective in acceptance or rejection of the theory of relation change. In the author’s opinion, two issues from among the claimed instances are effective in systematization of the theory of relation change and not of the main theory; and the other three theories can, on any basis in which they are adopted, accept the theory of relation change and the kind of basis adopted in those issues have no effect on rejecting the theory of relation change. Therefore, the basic objections made in the legal theorists’ statements on this theory are incomplete.

One of the legal principles which is applied in penal jurisprudence is the principle, “No blood money for the one killed due to legal punishment”. According to the generally accepted view of the Shī‘a jurists and also article 485 of Islamic Penal Code, the content of the principle denotes the general negation of ḍamān (liability) for the one killed by implementation of legal punishment. The most important arguments of the generally accepted view is the traditions that assert the general negation of ḍamān. Accordingly, the related traditions specify the arguments of the inviolability of the Muslim’s blood. In case the inviolability of the Muslim’s blood is recognized as refusal from particularization and the explicitness of the traditions related by the believers in the general negation of ḍamān is tainted, then the evidences of the principle can be particularized by the arguments of the inviolability of the Muslim’s blood, ḍimān can be merely removed from the responsibility of the implementer of legal punishment, and the blood money of such a person be paid from the public treasury. With the analytical-descriptive method, this research has dealt with the study of this probability and its arguments, the critique of the generally accepted view and other views, the realm and executive rules of the principle, and its relation to the similar principles.Furthermore, according to both viewpoints, this principle can be applied to retribution (qiṣāṣ), but its application to canonical punishment on the basis of generally accepted view is apt to be tainted and controversial based on the fact that the content of the principle is the general negation of ḍamān. Given the view posited in this writing, in all the legal and canonical punishments if the implementation of punishment leads to death, the public treasury undertakes ḍamān.   

The validity of sad al-dharāyi‘ (evasive legal devices) is among the age-old controversial problems of jurisprudence and principles of jurisprudence of legal schools. In the meantime, the Imāmī jurists have had a negative approach in methodology of Islamic jurisprudence (‘ilm al-uṣūl) toward its validity. What is noteworthy is that irrespective of the uṣūlī viewpoints of the Imāmī jurists, we find instances from among their fatwas that by way of causal inference in them they seem to be one of the referents of sadd al-dharāyi‘ and this indicates the non-homogeneity of the uṣūlī and jurisprudential viewpoints of the Imāmī jurists in the problem in question. Despite similar designations such as unlawful premise in Imāmīya’s principles of jurisprudence, the existing discrepancy can be a totally verbal dispute and resolve no difference between them in practice. The present article is intended to enumerate the jurisprudential evidences and referents in respect to its claim and tries to find sadd al-dharāyi‘ as applicable to them by way of causal inference in these referents.

One of the discourses posited in Islamic jurisprudence is “preliminary jihad”. This jihad comprises of four components of “fighting with the permission of the Infallible Imam”, “against the infidels”, “primarily, without any vexing by the infidels toward the Muslims”, “to call them to Islam”. The researchers have four approaches in analysis of this jihad. Many jurists consider it as of a necessary level in religion and among the indisputable principles of jurisprudence. However, from some thinkers’ point of view, proving this jihad besides having no exigencies suffers from rational and scriptural obstacles. Examining the two approaches indicates that none of them have had any reference, either positively or negatively, to the story of Prophet Solomon (A.S.) and Queen Sheba. In the meantime, it seems that this story contains much ability to remove the theoretical obstacles and ambiguities of this kind of jihad, at least in a historical perspective. Some of the components of preliminary jihad show that this story can be a document for the negation of improbability and implication of legitimacy principle of this jihad in order to remove the obstacles to the call to Islam; because, the four components of this jihad exist in it and the claimed rational and scriptural obstacles are removable with respect to Prophet Solomon’s (A.S.) function.

Endowment is the institutionalization of a kind of friendship and one of the great memorials of Divine Prophets, which is highly important in Islamic religious law. With the establishment of endowment bureaus and organizations, this institution has been brought under control of the law and state with various objectives, including expediency for the endowment properties. Thus, change of the endowment properties for the better has been a subject of discussion among the jurists as one of the most important issues of endowment. Some have permitted change or sale of the endowment properties in special circumstances and yet others have in general prohibited any kind of sale or change of them. In this article, first the permissibility or impermissibility of sale or change for the better of the endowment properties is dealt with. In continuation, by presentation of proofs, evidences, and permissions for this discourse, it is brought up that change of the endowed properties for the better and consequently more desirable use of them conforms to the endower’s main intention and paying attention to this important issue is in the interest of the endowed properties and one of the significant factors for their preservation, development, and perpetuation in the society level.