فصلنامه پژوهش های فقه و حقوق اسلامی
سال نهم شماره 1 (پیاپی 30، بهار 1392)

The obedience is one of the effects of marriage contract. Good behavior, assistance and reasonable sexual intercourse are examples of obedience. On the base of Article 1108 of civil code, if the wife does not fulfill her duties, she has not the right for taking her maintenance. However, in some cases, the wife can refuse from doing her duties and this forbearance will not be delinquency. In other words, in these cases, non obedience will be justified. In this article, we consider the cases that non obedience of wife is justified in the law of Iran and Islamic Jurisprudence.

Payment demur compensation is an old legal subject. After revolution, the jurists of guard council, on the basis of principle 4 of constitution, declared that damage for payment demur is not legitimate. After that, because of the enhancement of liquidity and inflation and damages on oblige for late approval, especially in banking affairs, the guard council was forced to review and accept the damage for late approval provided that receiving damages is required in agreement, if the obligor delays beyond due date. Finally, on 1379, legislator ratified the damage for payment demur in article 515 of civil procedure. In this article, merely the legal and jurisprudential Dimension of "damage for payment demur " in the laws of Iran and Vienna 1980 convention has been studied.

Non-conformity of the goods with the contract is one of the major claims set forth in the International Arbitration Courts. Vienna 1980 International Convention of selling goods has paid attention to it to stabilize and prevent disruption of commercial contracts and has separated obligation of compliance of goods with pledge from the obligation of delivery as a uniform global rule to comprehensively support the two parties, specially the buyer. That is, the contract is revocable merely on abuse of delivery. But in case of violation of the commitment to compliance, the buyer has no right to terminate and can require the seller to modify or replace the goods with the items set forth in the contract. This separation can be inferred through considering materials 31 and 35 of the Convention. This research addresses the necessity of the separation and its practical uses and then compares it with the views of Imamiah jurisprudents. The separation plan of compliance obligations from the commitment to deliver has been the focus of attention by jurisprudents as “the qualities and conditions of the Contract Lawâ around which different opinions have been expressed. Imam Khomeini, among other jurisprudents, explicitly recognizes the independence of the requirements of the contract law from the contract itself. On the other hand, although most jurisprudents believe in the inseparability of the requirements of the contract law and the contract, the vast majority of them believe in the separation and segregation based on the rulings on either one and consider the commitment to contract law requirements as compulsory.

Absentia trial is a kind of trial in which the claim is considered when the defendant is absent and finally judgment by default is emanated. In jurisprudence, based on the traditions and lawful percepts, absence of the litigant won't prevent to execute justice. This trial is not absolute and unconditional. To prevent probable damage, absent defendant can pay claimant's right by bail or guarantee, but the absent person con protest . Imamiyeh jurists introduced some rules for trial based on their viewpoints. In this article, the authors analyze the absentia trial in penal and lawful affairs judicially.

In this article, the authors want to study the effects of invalidity of contract on grasped property in Imamiyeh Jurisprudence and Iran's law and compare it with Egypt's law. They also indicated the viewpoints of some Imamiyeh jurists and Iranian juristic. Imamiyeh jurists account invalidity of contract to inability of ownership transfer, inviolability of possession and necessity of immediately reclamation of property and compensation. In article 308, 311 and 336 of civil code this issue has been analyzed. Iranian legislator also assume the responsibility of giver as the responsibility of usurper, if the transactions go wrong and become invalid. In the civil law of Egypt, based on article 142, the giver should modify the property if the transaction become invalid.

HIV prevalence in recent years, on the one hand, and the lack of specific law for criminal negligence and punishment for those who spread HIV on the other hand, have caused to attract the attention to use penal institutions in this regard. Some titles like: transmission of sexually transmitted diseases, willful murder, quasi-intentional homicide, attempted murder, premeditated assault and battery as well as restoring to arms (in order to frighten people) are applicable in Iran, however, threats to public health seems not to be appropriate in this respect. The death of offender or victim of an offence for reasons rather than AIDS and acquittal of offender before death penalty calling by victim offended person, lead to punishment fall and retaliation in Islamic Penal System of Iran. The knowledge of victim of an offence of being HIV transmitter or infective, even his/ her primitive satisfaction, brings no legitimacy for offender of the act committed. It also can not be considered as legal reasons for criminal act leading to criminal pardons.

Legal relations between creditor and debtor usually accompanied by the threat of whether the debtor fulfill the due payment or default. Therefore, accomplished creation of institutions as having the role of guarantee for the creditor, among which can name Zeman Contract which is a subordinate kind of contract following the debt, through which an acquittal person accepts financial duty annexed to other. This paper by investigating theories proposed by jurisprudence and law scholars tries to first, introduce the best theory(Vertical Tazamon) seems to be the most suitable considering needs and problems of socio-economic life then explaining the pros and cons.

The principle of importance and strength of contracts and attempt to dissolute it unreasonably is one of fundamental principles for compiling acts and rules, that is, this matter is one of the greatest concerns for compilers of international deeds and documents . An attempt is here to answer this question if violator of fulfilling the contract before cancelling the contract by the person who has the right of option removes the factors which caused the option, the right of cancellation will be removed or not. To answer this question , first of all the views of Shiite jurisprudents and Iranian's legislators has been studied and then a comparative study has been made in three international documents and deeds, that is, convention on international sales of goods' , law principles of European contracts and principles of international commercial contracts for coming to a reasonable result .