فصلنامه فقه و اصول
پیاپی 119 (زمستان 1398)

The Usulis who came after Seikh Ansari, by dividing the duty-bound conditions into three, have discussed topics of authority in three fields of certitude (Qat), conjecture (Zann) and doubt (Shakk). Their selected opinion with regard to certitude has constituted their basics in the two other fields and affected them. One of the above said opinions concerns the quiddity of certitude. According to the viewpoint of some new Usulis, the appearance of a word denotes the speaker’s purpose and the origin of appearance is the usage intention. Accordingly, the appearance of a word in the mind of addressee or other hearer is realized thorough acknowledgement of the speaker’s purpose and its origin is rational principles. Considering these principles as rational leads to considering acknowledgment and denotation of appearance as definite. Considering denotation of appearances as definite has implications. For instance, the appearances by exiting the scope of al-Amarat al-Zanniya and entering the realm of definite proofs acquire inherent authority and exit by their nature the area of proofs which prohibit acting without knowledge. Therefore, it may be claimed that not only the authority of appearances is the requirement of the primary principle but also acting on the basis of appearances may not be deterred by the lawgiver.

The property which is offered for sale and possessed by buyer is terminologically called makhuz belsaum, the possessor is called akhez belsaum and the act is called akh belsaum. Delivery of property by the seller to the buyer may be considered either offer or promise to sell. The author in this paper seeks to answer the following question: what is the liability of the possessor of property with regard to property damage while in his possession? A group of jurists believe that he acts in a fiduciary capacity while the others consider him liable. Some jurists maintain that his liability is contractual while the others consider his liability as tort liability. The above said opinions have been studied through analytical-descriptive method and it has been concluded that the possessor is considered to be in a fiduciary capacity with regard to the property in his possession for testing and it is against legal logic and unjustifiable to consider liable a person who, by the owner's authorization possesses a property to test and verify and consider him as unauthorized possessor.

Different opinions have been presented regarding the validity or invalidity of an endowment in which the donor incorporates a condition under which in case of need, the endowment object returns to his property. The opponents of validity of this act either consider it void ab initio or believe that such act is in fact a surrender of property not endowment; since in any situation, endowment must be perpetual and the condition that the object returns to the donor contradicts the essential character of endowment and is against the requirements of endowment contract. The third category consider the endowment and the condition as valid. The origin of all of the above said theories is the issue of “requirement of perpetuity in endowment contract” and the possibility of incorporating a resolutory condition therein. The present research, after studying the current jurisprudential opinions in this connection and accepting the theory of non-requirement of perpetuity in endowment, has proven the correctness of “the validity of endowment on condition that the endowment object returns to the donor's property in case of need” and by examining the concept of resolutory condition in law has considered it as applicable to the condition incorporated in endowment contract and the authors believe that based on the theory accepted in Islamic jurisprudence, it is permitted to incorporate a resolutory condition in the endowment contract and  the condition of return of the object to the donor in case of need is its most obvious instance.

According to the Islamic  jurists' Idjma, Khums of profits of income must be calculated after deduction of customary expenses of the duty-bound and those family members  entitled to receive maintenance; hence the need to determine the beginning and end of a period to calculate expenses. The results of this research are as follows: first. Determination of Khumsi year has not been expressed in any parts of the narrations and the Ali ibn Mahzyar's narration which is resorted to has been issued by the Infallible under the exceptional circumstances of the particular time and recourse may not be had thereto in this regard.  The authority of narrated Idjma is also refused given the opposition of some Islamic jurists and the fact that its source is known and due to its contradiction with Imam Sadegh’s narration. In addition, the beginning of this expanded duty is not either the start of the business or lapse of one year from the start of the business or the rise of profit, but the only criteria for duty to pay Khums is the rise of profit and it being surplus to expenses. Distinction between businesses with immediate or gradual incomes is meaningless too.

Probative principle, in the Usulis' literature, is an Istishab which rational, ordinary and accidental requirements have religious effects on its result. Although the Usulis prior to Sheikh Ansari considered authority for requirements of Istishab, the famous Usulis who came after him didn’t consider authority for probative principle.  The fact that non-validity of some Usuli issues is based on non-validity of probative principle and their effect on jurisprudents' fatwas indicate the vast application of this issue. Non-authority of the principle of posterior occurrence of an event and Istishab of eternal non-existence, non-permissibility of issues such as extending the implications of the individual to universal Istishab, extending the implications of origin to the Istishab of non-existence in the rule of origin and impediment, proof of the object of the rule in a qualified form through Istishab of an constituent of object are all related to non-authority of probative Istishab.

Intercession, terminologically, means a third party’s mediation in favor of the sinner to be forgiven and is some attempt to ignore the person’s sin and avoid his punishment. Intercession in penal affairs is one of the topics discussed in the Islamic jurisprudence which permissibility and scope in different types of punishments are controversial. Given the decriminalization policy and the existence of this establishment in Islam, studying its scope relying on the jurisprudential sources of Islam i.e. the Holy Quran, Sunna, Idjma (consensus) and intellect is of high significance. In this research, through a library method, after an examination of the verses and hadiths concerning intercession, the authors have determined the scope of intercession in different types of punishments on the basis of dividing crimes into crimes against Allah’s right and crimes against individuals' rights and concluded that there is no prohibition on intercession before the right owner in crimes against individuals' rights. Intercession in crimes against Allah’s right is not permitted. However, in Taaziri crimes which determination is left to the religious judge’s discretion, it depends on the latter to accept or refuse intercession taking into account its interests and evils and the requirements of time and place.

The Iranian law, given its deep roots in the Shiite jurisprudence, has incorporated the punishment of haddi theft in article 278 of the Islamic Penal Code of 2013. The punishment is, for the first time, amputation of the thief’s right fingers. The question of this paper is whether amputation of thief’s right fingers is an absolute ruling and must be administered in all circumstances or in specific cases, this principle is restricted and the amputation of the right hand is not administered. A hypothesis has been discussed in Islamic jurisprudential books: where the thief lacks the left hand is it permitted to administer the hadd of amputation of the right hand to him? The famous Islamic jurists, relying on the Holy Quran and Sunna have accepted the viewpoint that in such case the right hand is amputated; on the contrary, a group of Islamic jurists have preferred non-amputation. In the present paper, through an analytical-descriptive method and taking into account the Usul-al-Fiqh principles, and after evaluating the evidences of the two groups, the authors have concluded that in case the thief does not have the left hand, his right hand mustn’t be amputated and the hadd of theft is not applicable to him.
Given the fact that the Islamic penal law of 2013 has not dealt with this issue and the legislator has not adopted a positive or negative attitude, it has been recommended in this paper to amend the law and prescribe this issue therein.

“Abstractive or ideal plurality” of crimes is a general cause of aggravation of punishment and terminologically it is the application of multiple criminal titles to a single act. This issue is of special significance in criminal law since determination of a punishment proportionate to the committed crime leads to compliance with human and Islamic principles such as criminal justice and proportionality of crime and punishment and as a result, the mental safety of society is ensured. The Iranian legislator, like a number of legal scholars, has accepted the ideal plurality of crimes theory, adopting the application of multiple punishments in some cases and their overlap in others. Given the Imamia jurists' opinions, it appears that where, in case of ideal plurality, a crime is committed against a limb or the soul or the limb and profit, the punishments overlap and the more blood money is specified and in case qisas for life and for other limbs or profits overlap, only qisas for life is administered according to the purported signification. But in cases such as crime leading to blood money for two limbs or two lives and the like, given the absence of text and the impossibility of extending the available texts to cases not mentioned therein and the principle of non-overlap, determination of multiple punishments may be justified. The conclusion is that the principle of criminal justice which is deducted from intellect and sharia has not been complied with in certain articles of law considered in this paper and the Islamic penal code needs to be amended.