مجله مطالعات فقه و حقوق اسلامی
پیاپی 22 (بهار و تابستان 1399)

In spite of religious order in Quran that husband and wife, must compatible each other, there has been set out in verse 34 of Surah An-Nisa' regulations that jurists and lawyers, do not agree at their purport and application conditions. Specially what is meant by this section "to beat them" in the Sura. According to the prominent opinion of Shiite Jurists, what is meant by beating is exactly the act of beating wife bodily. However, few jurists believe that the verse prescribe not to speak to women. Although the later has no power to contradict the former, but on the basis of some of indisputable legal principles and laws, the acceptance of enforceability of the prominent opinion is too difficult.

Computer games are newfound social topics that some of them is possible by the payment of money. The jurisprudence has faced doubts about the games that perform or earn points for passing its various steps need to pay within the App and via internet. The present article studies the titles that is related to jurisprudence as "playing and payment", under the two titles, “ sabaq (racing) and ramayeh (arrow-throwing) " and "gambling" and “ unlawful trades " and “Prohibition of Consuming Property Wrongfully”. Finally, the view is accepted that some computer games is forbidden, because the purpose of acquisition is forbidden and so, they are adapted to the unlawful trades. In addition, if the payment is performed, just, for passing the various stages of the game, is considered as “Consuming Property Wrongfully”, and so, is forbidden. The method of research is descriptive-analytical and documentary.

Considering the large volume of claims regarding ordinary transactions in the legal courts of the country, we find that the existing laws do not have the capacity and effect that the parties have to deal with the contractual relations of individuals. Therefore, it should seek to define new criteria and standards  in contract relations with maintaining the principles governing contract law. studying the background of procedure in our country and analyzing the fundamentals of jurisprudence by offering Some examples of this kind of restrictions in Islamic thought - law is one of the purposes of this paper . although Registration Act 1346 must be considered the beginning of the rule, it has been shown that regulation has not been enough to prevent the development of such lawsuits and that by applying more effective mechanisms in the field of contracts such as the development of contracts that must be set up in formal documents and provide guarantees of effective implementation of the necessary platform to address existing challenges.

The feasibility to execute retaliation and capital punishment through organ donation is an innovative solutions and yet effective way to protect the human life and health. Imamie's famous jurisprudents believe that the method of punishment’s fulfillment does not matter by itself, and the punishment must be implemented in such a way as to impose the least suffering on a person, in contrast to some jurisprudents, equality and the Resemblance of execution are indispensable. This article, while accepting the well-known opinion, on this basis, the convict will suffer the least and it is possible to change the manner of punishment, considering that one of the most important sources for providing a transplanted organ, especially the basis organs such as the heart, lungs, liver, and pancreas, etc., is in the body of people who is sentenced to death. and in most cases, they have healthy organs and they are buried with the execution. however, governmental order is solution Especially in cases of dissatisfaction to organ transplantation.

Although the jurisprudents of the Imamiah and consequently the civil code have forged and drived out a termination clause in the marriage contract from the autonomy of the parties’ will but the above view on the Imamiah and Iranian law conflicts with reasons and rules relating to the parties’ freedom of will in marriage contract in making a termination clause. According to the rules relating to the will of the parties of contract making a termination clause in all binding and also bilateral contracts is possible, so that some of the jurisprudents have known the making a termination clause in binding and bilateral contracts as a rule and since the marriage contract is considered one of the binding and also bilateral contracts, then the making a termination clause shouldn’t be considered void. Recent research have accepted the theory of validity of making a termination clause in marriage in resolving this conflict and it have proposed and overcome the bugs while critically revising the reasons and rules relating to termination clause by a descriptive method and with a library citation tool and it have suggested the amendment of civil codes’ articles.

In the sacred religion of Islam, prescribed punishment has great position. One of the prescribed punishments is related to theft that is explicitly is mentioned in The Holy Quran (Maeda, 5, 38). The execution of prescribed punishment for theft is subject to the existence of all conditions together. One of which is the case when the stolen property has been in a safe custody. In this article we investigate whether or not Safe custody (Hirz) is among the conditions for carrying out the theft? Then the reasons of Advocates and Opponents about conditionality of Safe custody are investigated. we have come to the conclusion that Safe custody is not the condition for the execution of the theft prescribed punishment.  Even if it is effective in carrying out the sentence it must be implied in the meaning of theft Itself .When so it will be possible to see why  the holy lawgiver has not taken Safe custody as a condition.

Extension agreement is a type of commitment where a party (or parties) to a contract undertake(s) to extend the contract for another term. These commitments are positive  conditions as they are implied in another contract the subject of which is the conclusion of a legal deed. In addition, they are Contract promise as the parties undertake to conclude a contract in future. In practice, these commitments take different forms with varying validity. In the event the extension is subject to the parties’ consent, or they are obligated to extend the contract without setting a consideration or a standard for it, extension shall be ineffective due to lack of intention and a clear object of contract. On the other hand, the duty implied by the parties as a condition identifies the consideration and counts as a validity condition. However, the validity of such duty which is set solely to determine a standard for consideration is the subject of much debate in Iranian Law, because the consideration is not specified at contract conclusion. The present paper proved that jurisprudential and legal foundations of the annulment of risky and uncertain transactions validate these conditions. Article 8 under Lessor-Lessee Act adopted in 1998 put an end to the debate and acknowledged their validity. The author believes that judgment of the said article is among the general conditions of contracts.

In various periods of legislation, the Islamic Penal Legislator has established the primary principle of the criminal responsibility of the intoxicated perpetrators based on the well-known jurisprudential viewpoint and considered some exceptions to it. Adoption of such an approach, besides its alignment with the principles of fairness and public order, has led this law to enjoy solid jurisprudential and legal principles. Meanwhile, some significant changes have been made in the criteria of applying this approach in the Islamic Penal Code (2013); among them are making distinction between the voluntary and non-voluntary drunkenness, determining source of drunkenness (addiction toalcohol, drugs, psychotropic drugs, etc.), making changes in the conditions of applying some certain criteria for the enforcement of criminal responsibility like restriction of the previous intention of absolute crime to the previous intention for the occurrence of the crime in question, predicting the new criterion of the knowledge of the crime occurrence, distinction between the proofs of criteria for the criminal liability of crimes committed in drunken state, and legal clarification of the monetary compensation for the criminal responsibility in drunkenness. Nevertheless, this law suffers from some ambiguities and legal deficiencies, including the ambiguity in the type of murder, like a situation where a drunk wants to kill a certain person and someone else is killed by mistake, ambiguity in “subjectivity” or “objectivity of the criterion of the knowledge to crime, ambiguity in the type and amount of punishments prescribed in Article 307, and contradiction or lack of contradiction between Articles 153 and 307 and Articles 120 and 128 of this Act.

The majority of jurists regard "the  rule of avoidance of punishment (darā’)" as being applicable to the dubieties concerning the object, while the rule is absolute and can include the dubieties concerning the precept as well. The dubiety in criminal law is sometimes in the legal element, and sometimes in the spiritual element, and sometimes in the material element, the inclusion of the rule in these cases is also accepted. Another dubiety is raised in jurisprudence, and it is a dubiety in repentance that, if there is a dubiety about repentance, the punishment will be removed. It seems that the dubiety in the implementation stage has been effective and causes the execution of the sentence to be stopped; that is, in the absence of a process of social justice, the execution of the judgment of the place is uncertain; therefore, along with the dubieties of the object and the precept, dubieties of error and reluctance, those of the judge and the accused, and those of repentance and execution of the sentence – which are new considerations in the rule of repelling - should be taken into consideration.

The nuclear weapons, which are the most important example of weapons of mass destruction, are a major threat to mankind today; In the field of manufacturing weapons of mass destruction there are two different jurisprudential approaches. Some of the jurists cites to narrative reasons like “And prepare against them whatever you are able of power’ they believe that in order to defense against enemy to have them is permission or somebody say necessary. Contrary to this belief, however, others emphasize to lack of a permit to manufacture and possess nuclear weapons. The achievement of the present research- by the descriptive analytical method-  is a definite proof of the prohibition of the production and use of nuclear weapons based on Islam and an appropriate answer to the reasons for the rival hypothesis, which appears to be strong and solid in the primitive view.

In executing of legal punishment such as cutting of hand or leg, it is probable to cut the opposite organ, by mistake, intentionally or by beneficence. In this case, the punishment of cutting is left, in view of famous theory in jurisprudence, contrary to another one. Although the in both opinion the pay of blood money is necessary, in supposition of intention of mistake and retaliation in supposition of mistake. In view of this article, by analysis of foundations, the view of un famous jurists ( revocation of legal punishments) is seem to correct, in both supposition of mistake and intention, and conformable to traditions that says it should be remain one hand and leg to offender, to accomplish basic and daily  Affairs. But this theory is reviewable, in conviction of executioner to retaliation or to pay blood money, because of contrariety with traditions, rule of Beneficence it will be in the interest of offender. (revocation of punishment, on one hand, and the right of demand of retaliation or receipt of blood money, on the other hand.) In opinion of authors, the equable way is that we say to revocation in both of intention and mistake, and at the same time we accept some proportional deterrent punishment (Taazir), in case of intention.

The reason as to why the legal actions are indispensable is a fundamental challenge that is discussed in England’s law under the title of “the theory of contracts”. The primary question raised by this theory is that what issues cause the dispatch of mental issues from the ethical world into the realm of law? The crude answer to this question can be sought in the theory of “free will” and the creative power of will. The abovementioned challenge has also been posited in Iran’s law and Imamiah jurisprudence, especially for the fact that remaining loyal to some legal actions is necessary and the fulfilment of some others is permissible in both of the aforesaid systems. So, the present study looks for an answer to the question that “why the binding legal actions are legally considered indispensable?” Despite such a seminal answer as the governance of will, it seems that the necessity and permissibility of staying loyal to the legal actions are latent in the  Hidden  expediency of them. This Hidden expediency requires basing of the gratuitous legal actions on permissibility and basing of the exchangeable legal actions on necessity. This principle has been considered herein as the foundation of consideration theory and issues like ex gratia in England’s law and preliminary conditions in Imamiah jurisprudence and Iran’s law will be investigated in the light of the aforesaid theory.

Unlike the common belief that conflict is necessity for a claim, "undisputed claims" proceed without any conflict in order to confirm and stablish the defendant's claim. Along with jurisprudential background and numerous examples, some legal and social requirements warrant acceptance of this claim. Therefore it´s more appropriate to extend the title of "undisputed claims" beyond the pre-formed templates to any case that does not conflict with the defendant's rights. Acceptance criteria of this claim is defendant's rights that shows judicial decision is the most appropriate way to confirm and enforce plaintiff's rights. Despite the similarity with other judicial decisions, undisputed claim is an independent nature whose recognition has numerous practical implications in relation to plaintiff and the court. However, it is clear that acceptability of "undisputed claim" and identifying all plaintiff´s rights cannot hurt the rights of third parties.

Competition is a kind of contradiction with collaboration. People who compete with each other have accepted the principles and regulations which they observe them. They achieve to highest possible level of their abilities with competition. The community benefits from their efforts. People who ignore rights of each other and avariciously following on increasing earnings will disrupt the good conditions of society and undermine the natural process of affairs. Islamic jurisprudence by protecting the interests of the society through the acquisition of the benefits and repulsion of Corrupted, looks for rejection of any kinds of corruption and realization of favorite and good society.
Anti-competitive practices are practices which create serious economic corruptions and disturb natural process of economic affairs and finally disarrange the whole society.
Competition law on the basis of rule of “La zarar” , the rule of Abuse of Right ,the rule of Negating Disorder, the rule of Public Order, the human right rule of Non- discrimination, and the theory of Prohibition of Consuming Property Wrongfully sets up regulations to prevent the effects of that anti-competitive practices. We, in this article, analyses the basis of the obligatory verdict (hokm taklifi) of these prohibitions.

In the Iranian legal system, cadastre, has known " Hadnegar" or comprehensive land recording of the real estate. Cadaster is a type of registry mapping that has legal value. It  determines the situation of the real estate or real property's metes-and-bounds of a country,value, position, ownership, area and type of land use. contrary to significance and position of this subject in new Registration law some its issues in the Iranian legal system have been neglected. The most important question  about cadastre is that does cadastre  contradict demonstrative evidence of claim? the present study, by the use of descriptive-analytical method, peruse the value of citation to  cadaster’s maps in real estate action. Since instrumentality of contradict demonstrative evidence of claim and their role in attainment the philosophy and purpose of the proceeding  and as regards to Credibility of cadastre’s data, this information can violate demonstrative evidence of claim.

If the contract is suspended and there are obligation to fulfill it, the failure to comply with the suspension will not necessarily lead to a void or, more specifically, to termination of the contract. In other words, the failure to comply with the suspension will not necessarily lead to a void or, more specifically, to termination of the contract . In this type of contract despite the existence of commitment to creation of condition first: there is no need to mention the length of time that the condition should take place and commitment to creation of condition prevent contract to be a risky and aleatory contract. Secondly, after the expiry of the term and the non-fulfillment of the condition, By economic analysis of the transaction and the implied willingness of thecontract’s parties, one can infer that there is no need for the termination of the contract in the infinitive sense and postpone the continuation of the contract or the termination of it on the will of the party in whose favor the condition of contract is created.