نشریه تحقیق و توسعه در حقوق تطبیقی
پیاپی 5 (زمستان 1398)

It is essential to understand the beliefs and opinions intellectuals of every society to grasp their thoughts. To this end, the human and epistemological lives of intellectuals should be addressed during relevant historical periods. It is not simple to introduce intellectuals who are popular in the context of fundamental rights among jurists and lawyers in the history of Iranian Law over the recent century when the works of religious and legal scholars have been investigating in many papers and researches. The mentioned scholars not only are famous jurists in the field of Islamic jurisprudence but also have conducted some projects and plans that are not simply carried out by all scholars. Therefore, it is simple but impossible to find the intellectual life of such scholars, such as Jafari Langarudi. Besides, it is an undeniable necessity to introduce and identify reputable jurists and lawyers of Iran in this era. Accordingly, systematic academic and intellectual studies on the works of these scholars lead to many precious implications. However, it should be considered that the wrong conception of beliefs and opinions of famous lawyers of Iran especially in various cyberspaces and websites requires an ethical and legal review to fill the existing gap in the relevant research field. Therefore, it is essential to introduce writers and authors of fundamental and conceptual works of jurisprudence and law of Iran to identify those who only claim that are Iranian Lawyers.

One of the important subjects of sale is that the seller is permitted to reclaim the actual object of sale in case of customer bankruptcy. Article 380 of the Civil Code has specified this case. There are various viewpoints about the theoretical justification of such rights for the vendor regardless of the abrogation of contents of Article 380 of Civil Code to the Code of Procedure 1931 and Insolvency Act 1934 or non-abrogation of it. This study aims to determine the abovementioned viewpoints, in particular the opinion of Professor Jafari Langarudi based on the balance principles. To this end, first, regulations related to bankruptcy and its association with Article 380 of the Civil Code and the requirements for this right of the vendor (seller) are expressed. Finally, four approaches to the theoretical justification of this right are explained. These approaches include 1) a specific form of right of lien; 2) right of reclamation of the object of sale as an option; 3) right of reclamation of the object of sale as the option of a delayed payment of the price and observing exchange justice; 4) right of reclamation of the object of sale under the light of balance principle. According to the results of such comparative research, the fourth viewpoint of the "right of reclamation of the object of sale under the light of balance principle" not only is matched with scientific principles but also has fewer faults.

Mahayat (common or joint interests) is derived from the word “board” (Heyaat). Literary, this term means mutual equivalence between two boards or situations. Mahayat means partition of joint interests that provides fair vindication of property by retaining it and preventing a delay. Accordingly, this is a logical way for company survival. In general, joint interests are partitioned if the actual joint interest cannot be partitioned, and owners have to divide the interest to avoid their loss. In jurisprudence, interest partitioning is done based on the consent, which is permissible under the contract in which partners can cancel it or perform it based in the judicial force in the case of disagreement. The nature of this contract, in the viewpoint of Imamiah Jurisprudence, indicates that joint interest is an uncertain contract like contracts of exchange. If this contract is not matched with other contracts, it can be enforced as a new contract. This study was conducted to determine the nature and orders of joint interests in the opinion of Jafari Langarudi and Imamiah Jurisprudence. In the viewpoint of Imamiah Jurisprudence, the nature of this contract indicates that joint interest is an uncertain contract like contracts of exchange. If this contract is not matched with other contracts, it can be enforced as a new contract. Joint interests are divided based on the consent or compulsion and are executable with legal force in the case of disagreement.

There is disagreement on the case that the permission of heirs in disposing surplus one-third of heritage is based on the affirmation of legato or is preliminary bestowal by heirs. Many of Imamiah Jurists explain that the permission of heirs is an affirmation of legato, not their donation. There is not any clear verdict in Civil Code in this context; however, the permission act that is expressed as a complementary performance of legato testament cannot be grasped as a donation in legal terms because the donation is an independent legal action, not a subsidiary legal action. Furthermore, the impact of permission after death prevents any risk in more than one-third testament and nothing more can be done under such permission (Article 843 of Civil Code can be analyzed to understand this case). In terms of the authority extent of the inherited person in testament, it seems that although the person can possess his/her property until he or she is alive, it does not mean that the person is allowed to possess the properties after his/her death. Testament is about property possession after death. Religious proofs and legal texts imply that testament is limited to one-third of the estate, and more than this value is subjected to the permission given by heirs. Therefore, if we confirm the narrations based on valid jurisprudential principles, we will have religious evidence that inherited persons can allow disposing of more than one-third of the estate that can be donated for charity affairs. If heirs allow disposing of more than one-third of the estate then they claim of the low amount of the despising more than one-third of the estate or if the legacy is more than what is considered, their claim must be confirmed based on the separation between disposing of the actual certain amount or general case. However, Jafari Langarudi poorly believes in hearing of such a claim in both the abovementioned cases.

The extant study aims to study the comparative aspects of “The Expanded” book written by Jafari Langarudi by introducing and identifying Sunni references (in three contexts of jurisprudential, regular, and jurisprudential regulations). As the value and credit of each text subject to its references, such research will indicate the extent and depth of conducted comparative studies in this field. This study was carried out based on a sentence quoted from the author of the studied book, "It is beneficial to apply the comparative method in many legal issues[1].” Authors of this paper believe that high referrals in the book “Expanded” to jurisprudential, regular references, and Sunni jurisprudential regulations have enriched the comparative aspects of books of Jafari Langarudi, which implies his familiarity with relevant sciences and Arabic language and literature. Therefore, this paper tries to give an image of the author's documentation of Sunni references in the abovementioned fields. The study aims to make the audiences of Islamic jurisprudence and law familiar with authenticated references in particular “Expended” (Al-mabsout) Book. Ultimately, it should be noted that this study only focused on jurisprudential and regular texts and jurisprudential regulations due to time and capacity limits. This paper did not study irrelevant references because there are numerous Islamic references, especially in interdisciplinary texts and documentation on various references in books written by Langarudi.

Undoubtedly, theories cited by legal scholars play a vital role in all legal systems. Accordingly, the crucial role of such legal references in judicial procedures and law enactment is not deniable. However, it seems that the intellectual foundations and logic of a legal theorist is as important as his/her thoughts and beliefs. Intellectual foundations of theorists are addressed to more accurate research into their theories and criticize them. In this case, researchers can think more and generate more theories instead of keeping existing thoughts. As a realist and pragmatic professor, Jafari Langarudi does not limit himself to formal logic or pure rationality. He does not only rely on metaphysics or modern naturalists, and extremist individualist or state-oriented positivists. He also does not confirm all of the methods used by proponents of rhetorical logic in order not to be captivated by some delusions such as fair and justice reasoning. In contrast, there is not any duality in the opinions of legal sociologists and philosophers. Society exists with all of the environmental, time, and existence aspects to discover potential and actual musts (what exists and what must exist). Jafari Langarudi has its reasoning way with a pluralist tendency. He employs analysis methods for natural sciences (including inductive reasoning, empirical observation, and objective analysis) besides analogical reasoning. Accordingly, he is opposed to traditional methods in which, formal logic proponents consider the original authority separated from the comparison. In his opinion, there is not a considerable difference between the scientific methodology of natural sciences and normal sciences. He introduces natural sciences more useful in analyzing scientific data without mixing the paradigm of natural and credit sciences. Professor Jafari Langarudi is a pluralist who sometimes uses historical, dynamic, and evolutionary interpretation but sometimes employs sociological and pragmatic methods. He sometimes uses philosophical-analytical and comparative methods. Nevertheless, his reasoning logic follows a discipline that uses concepts, technics, and methods in an integrated and accurate framework based on certain foundations of axiology, epistemology, genealogy, anthropology, and ontology.

Professor Jafari Langarudi is one famous scholar in Islamic Jurisprudence and Law. He has numerous academic characteristics including familiarity with jurisprudential foundations and teachings, power of reasoning, interpreting, and analyzing jurisprudential and legal issues. According to numerous referrals to the book “Shaher Al-Islam” (Islamic Rituals) by Molla Mohammad Ashrafi that was not simply available (only in form of lithography) at the time of wiring books by Jafari Langarudi, he had an academic mind and a great curiosity. Moreover, his book is highly precious as a masterpiece among other jurisprudential and legal books. In particular, it seems that he has been inspired by contemporary scholars in some of his legal theories. Hence, referrals by Jafari Langarudi to the studied jurisprudential book (called Islamic Rituals) not only implies the importance of this book as a valid reference for law and jurisprudence but also contributes to more identification of intellectual foundations of this lawyer. Furthermore, a comparative study on opinions of Jafari Langarudi and Author of Share Al-Islam indicates their shared ideas in the field of some subjects such as independent vote in disputes.

Although there is a long history behind the words and terms collecting in the written background of Islam and Iran, there is not a considerable background of collecting and writing the book of academic and technical terms in the Persian language. Such a gap also exists in the case of terms related to law science. As knowledge, extensive skills, and information are required to collect, record, and define words and terms. Hence, it is not possible to have an encyclopedia without using skilled methods. However, the best results can be obtained if correct methods are used besides inductive reasoning, Ijtihad (religious jurisprudence), and academic courage. This study not only examines terms, words, and bibliography in this field but also describes terminology method and its features and effective factors used by Professor Jafari Langarudi who was the first researcher that made an effort to promote this knowledge. Hence, this paper addressed his scientific approach.

The theory of freedom of the will is one of the fundamental principles of the civil logical discipline. It is believed that each legal action is affected by a range of inner mental activities that can be understood by a person when searching into his/her conscience. Following the doctrine texts, it is assumed that the essence of each contract is based on an agreement to create a legal effect that relies on the will (intent) of parties. On the other hand, each contract is signed based on the consent caused by the confirmed action in advance in the mind of parties. In other words, intention and consent are both required necessities for signing any contract. Accordingly, the consent that does not lead to intention or the contract origin that is not based on the consent is not applicable. In the legal system of Iran, all legal obligations and contracts are based on the will of parties. As the contract is the rule between parties, some conditions are set in Article 190 of the Civil Code to protect transactions and the aforesaid verdicts. There are some conflicts in interpretations of regulations, which make analytical theories based on the doctrine. Professor Jafari Langarudi introduces "intention to do" as the common subject of all contracts or obligations. "Intention to do" indeed is a step in which, the decision is executed and used as an antonym of "intention to inform". This study was conducted using a descriptive-analytical method and library technic to describe civil doctrine and theories in the context of the current practice of courts by considering Article 190 of the Civil Code.

Legal acts are credit elements that are created in the human mind as measures to control relationships between individuals in society. The mental elements are entered into the real world by expressing the intention. These acts are categorized as agreements (contracts) and obligations. Accordingly, any action arising from the agreement between two intentions is a contract, and ever act done under the will is called obligation. Professor Jafari Langarudi considers this classification as a kind of abstract and general individualism, which is not based on reality. His method is based on elementology. In this method, every legal act is investigated separately, and its components are identified as elements that exist in the practical custom of society. The credit component will not exist without the aforementioned elements. Therefore, the legal action is divided into four categories including contract, obligation, the gap between agreement and obligation, and contract draft. This paper examines the method used by Jafari Langarudi besides the conventional method and foundations and implications of each method. Finally, it was concluded that the method used by Professor is matched with legal logic clarifying the difference between the abovementioned legal acts.

This study was conducted to describe and analyze analogy weakness and confrontation with such failure in books written by Professor Jafari Langarudi. Findings imply that analogy deficiency can be seen in academic and research works. Such failure has led to poor arguments in academic researches. According to statistical analysis of using analogy “respect for scholars”, this analogy has been used more than 7000 times in jurisprudential and regular references. Qualitative analysis shows that tens of weak and inefficient examples do not contribute to the learning process preventing learners from thinking and subjective reasoning. Such poor analogies may disturb the meaning process of text. The extant paper has used the stylistic device of personification for the analogy of "respect for scholars", as one of the most practical analogies in principles of jurisprudence, that inefficient use of this analogy has changed the meaning and concept of this expression. In this case, Professor Jafari Langarudi has attempted to design and create new and applicable examples to fill the academic gap in this field. He has changed learning and teaching processes by creating abundant new and efficient legal examples and analogies. Therefore, academic and scientific development of the "science generation index" requires further applicable and useful examples and procedural progress in jurisprudential, regular, and legal researches.

The value of judicial presumption is determined by the judge under the authority of Law. In this case, a judge can decide on the truth of the issue and issue the proper verdict. Judicial presumptions are indeed deductions found by the judge based on the evidence given by the case parties. Such deduction and reasoning are based on some foundations and references. For instance, suspicion has been introduced as one of the judicial presumptions. The state of suspicion is a reference in which the judge relies on the judicial presumption. It means that the judge becomes suspicious about signs and indications or other factors such as custom, reason, logic, and the relationship between these factors and the subject matter. In this case, the judge must rely on the presumption. In the opinion of Professor Jafari Langarudi, normal knowledge can be used as a reference for judicial presumption. The normal knowledge of the judge is acquired from references such as the custom existing between people, questions and answers of parties, or logical and reasonable causes. Accordingly, the aforementioned references create an extent of confidence and knowledge for the judge that creates a normal knowledge or judicial presumption. As resources of judicial presumption, custom, questions and answers of parties, and logical and reasonable signs are sometimes used in verdicts issued by courts.

Introduction the science of law is the title of a course in the educational list of legal knowledge in Iran that has been taught for many years in law schools and departments. Introduction the science of law is The course that is offered at the beginning of undergraduate students in universities during the first semester of law. The purpose of this lesson is to understand the basic topics and concepts of science of law , which usually include the philosophy of law, nature, principles, sources and the general outline of the legal system . Among the many books of Introduction to the science of law , two pioneering and distinguished works are "General Introduction to the science of law" by Jafari Langroudi and" Introduction to the science of law and a Study of the  Iranian Legal System" by Nasser Katouzian". The first one has a historical precedence and the second is much more common due to leaving the official legal space and then the migration of Professor Jafari Langroudi. In this article, two books are comparatively analyzed. The result shows that, however, the purpose of Professor Jafari Langroudi in the title of "General Introduction to the science of law" is to deal with the pure introduction of legal knowledge, regardless of its Majors; But this valuable work is more of an introduction to the principles of jurisprudence. Katouzian's book is also an introduction to private law with an emphasis on civil law and evidence in substantiation of claims. After all, justice and human rights are the weak and neglected categories of these venerable books.

Contract as one of the sources of commitment has the most application in the legal relations in society. therefore, analyzing the elements of the contract is so important. The contract is defined in the Civil Code and its basic conditions are stated in Article 190, but it is the responsibility of lawyers to analyze the constituent elements of the contract. Professor Jafari Langroudi has provided appropriate analysis in this regard in his works; Accordingly, the purpose of this article is to review the analysis of Professor Jafari Langroudi, which has been studied by examining his views and theories in a descriptive manner, and finally we conclude that he has provided new and original reading of the concept of contract and Its elements . Using this theory, he called the nature of the testamentary disposition as a unilateral legal act and also the nature of the unauthorized transaction as a contract.

theory of equilibrium is an interesting book written by Professor Jafari Langroudi. In that book, he has introduced new and innovative ideas that are unprecedented in old and new works. His thoughts in this book are examined in this article. In the article, Principles of equilibrium of alienate vs. alienate, equilibrium of conveyance vs. conveyance, equilibrium in the value of considerations is discussed in exchange financial contracts. These three principles of equilibrium are derived from the will of the parties and are based on reason, logic and justice. Another principle that is emphasized in the book and article is the principle of maintaining the contract.it isdifferent with the principle of the necessity of the contract and it has not been noticed or rarely mentioned in the works of the ancients and the late ones.This principle unravels some of the issues raised in the book and article. Impaired of any of the principles of equilibrium has consequences. Whenever the equilibrium in the alienate is impaired It may not be a contract, or in other words, the contract is void, such as the sale of certain property Which at the time of the contract is either non-existent, or a financial sale of which it is a part of another and the owner does not enforce, In this case, the transaction to the part in which the equilibrium is disturbed is invalid and therefore the customer can accept the part that has no problem and reduce the price in proportion or terminate the transaction altogether by applying the option in sales unfulfilled in part. The principle of equilibrium in conveyance, which is more important in jurisprudence and practical law than alienate, must be observed and If the equilibrium is disturbed, the contract will be terminated, as in the case of loss before grasping ,Or the obligee may refuse to perform the obligation until the other party is willing to fulfill the obligation. (Right of lien) or in some cases the customer has the right to terminate, such as payment delay option and impossibility of delivery option. equilibrium in the value of exchanges is also important in counterfeit contracts and its disruption has some consequences and executive guarantees, such as the option of defect, the option of lesion and the option of decite.The principle of equilibrium of alienate vs. alienate is somewhat comparable to the theory of cause or effect of obligation in French law and the principle of the equilibrium of conveyance versus conveyance is somewhat comparable to the theory of the Grand Master CaptainFrench is about the cause of commitment.

Among the various contracts, the contract of settlement has this unique feature due to its vast territory That the result of other contracts and compromises between persons can be drawn in its form without the specific provisions of those contracts should be in force within this framework. contract of settlement is a broader format than all nominate contracts that is provided for the realization of the rule of will and the Civil law refers to this in Articles 754 and 758. On the other hand, Article 10 of civil law has established a principle called the principle of freedom of contract, which has given the rule of will a wide scope and removed it from the confines of nominate contracts. The legislator intends to enact Article 10 to validate transactions that, despite the needs of society, in terms of the effects desired by the parties, do not fit into any of the nominate contracts. There has always been disagreement among jurists as to whether, despite the contract of settlement, Article 10 of civil law which Is adapted 1134 french civil law , was necessary or not? According to Professor Jafari Langroudi,Despite the contract of settlement and Articles 752 and 754 civil law, borrowing the meaning of Article 10 from Western law is superfluous and it should not be said that the principle of free will as extensive as stated in Article 10 has no precedent in jurisprudence, because the consideration of various types of contract of settlement and its documents in jurisprudence, which at the same time shows the implied scope of the provisions of the Civil Code in a contract of settlement is a living proof to the contrary. The present article is responsible for explaining the relationship between these two legal institutions by emphasizing the views of Professor Jafari Langroudi.

Knowing the effects and rules of credit beings depends on identifying their nature. The importance of nature is due to this and other factors such as non-possession and interference of legislators in matters of rulings and its referral to custom and also the inevitable conciseness of custom in some subjects, therefore the need for scientific effort and substantiated opinion of the doctrine is certain in identifying the legal nature. In this article, we examine the views of Professor Jafari Langroudi - one of the activists in the field of philosophy of beingsCredit and the nature of these creatures - we look at the tools of nature and the impact of these tools are studied to prove the nature of unilateral legal act of testamentary disposition, endowments and donation to be explained From his point of view, what are the means of knowing the nature and what effect do these tools have on the acceptance of unilateral legal act about mentioned institutions and denial of their contractual nature? One of the features of this research is that in this research, with more than one hundred and twenty references, more than twenty works of Jafari Langroudi have been cited.

This work attempts to evaluate the treatise on consensus compiled by Mohammad Jafar Jafari Langroudi. The article is contextualized in two sections. The main section intends to describe innovations into the treatise by the author, and in the second section, researchers try to ascertain the opinions of the author in the treastise. The first section explains the importance and necessity of rearrangement of scientific topics and how rearrangement and the problem statement approaches lead to the scientific developments and new findings. It also covers the rearrangement and alteration made by Mohammad Jafar Jafari Langroudi on the titles of topics on consensus. Scientific innovations and initiatives in this treastise include 1) innovation in the definition of consensus using the element identification method, 2) innovation in the invention of specialized concepts and terms (e.g., frequency of judicial decrees), 3) innovation in the relationship between scientific concepts, 4) innovation in the analysis of the consensus on claims, 5) innovation in the design of new questions and reappearance, which is identifiable from the content of this treastise, and 6) innovation in the exemplification. The second section includes the criticism and consideration of the author's opinions, including 1) criticizing the author's failure to compile a distinguished treatise on consensus in religious works, 2) considering the definition of consensus by the majority, 3) considering the claim on the author's ignoring to separate carelessness consensus from complete and accurate consensus, and 4) questioning the ambiguity in semantic boundaries of reputation and majority expression and consensus.

A condition is a pivotal act, which is well-accepted by Imamiyya religious jurisdictions and the Iranian legal system, and its impact and power on Iran's civil laws is a strong proof for this claim. This condition appears in the form of a precedent, proviso, and annexed condition, depending on the contract's validity and its stipulation time. A constitutive condition is an act by which the contract has been signed, and causes certain rights for parties, although it has not been explicitly specified in the contract. In his Mabsout in Law terminology, Jafari Langroudi has explained the constructive condition as follows: obligations of either side to a contract amid the agreement (negotiations before signing). It also is known as the conspiracy condition (Article 1128 of the civil law). If a contract is signed based on the obligations determined previously, it will be called the conspiracy/constructive condition. The constructive condition shall be specified and well illustrate its connection with the contract (Article 1128 of the civil law). There is no consensus on validity and/or invalidity of the opinion of preceding and recent Imamiyya religious experts, and the majority of them conclude on the necessity for adhering to the constitutive condition and consider the imperfect specification of the condition amidst the contract and asymmetry between them as factors from contract termination. However, some religious experts consider the conspiracy condition valid and effective. Some notorious recent religious experts see the conspiracy condition valid, while in Iran's legal system, it has been admitted effective by the majority of legal scholars and lawyers. Moreover, the opinion of our legislators on this topic has been influenced by the non-notorious opinion of religious authorities. For instance, Articles 11113 and 1128 of the civil law consider this condition valid and effective. These articles can further be extended to other contracts and agreements, besides certificates of marriage and divorce. There is no difference between marriage certificates and other contracts, in terms of the conspiracy condition, and thus this condition can be effective in other contracts.

There are clear definitions in Islamic religious jurisprudence and law to differentiate the contract from a unilateral legal act valid consequences, but there are also disputes on the topic between religious jurisdictions and lawyers in some legal affairs due to some similarities. The testamentary disposition, which means the testamentary disposition of real or personal property to another person all for free, is a legal matter that has been under dispute from past times. For the testamentary disposition, some accept its contractual nature, and some others admit its unilaterality by rejecting the reasons provided by the former side. Both sides have their own opinions, but here we aim to ascertain reasons for the unilaterality of the testamentary disposition or its entry into a contract in religious jurisprudence and law, concentrating on the opinion of Mohammad Jafar Jafari Langroudi. For this, we analyze the opinion of the two sides to scrutinize their theories, aiming to reach an optimal output, which is in favor of the unilaterality of the testamentary disposition in his opinion.