نشریه آموزه های فقه مدنی
پیاپی 22 (پاییز و زمستان 1399)

The nature of division was discussed in jurisprudence and law books, but less was said about the nature of partition. Most of the writers in the study of division have also dealt with its nature and because they consider separation as one of the partitions of division, they have found themselves without the need to express the nature of partition. Recognizing the nature of partition; depending on whether the transaction (sale, exchange, interchange), or discrimination of the right or contract, the effects are different. So, is there a right of pre-emption and options in partition or not? Is it possible to rescind bilaterally (rescission, cancellation of a contract by mutual consent) in partition or not? Will the partition have an effect on the necessity or non-necessity of registering the division letter? The answer to these cases is to identify the nature of partition. In this article, analytically-descriptively, by studying the opinions of jurists (lawyers) and Imami jurists, we will say that the nature of partition into the theory of being a contract in the statute is somewhat more popular among jurists. However, being a contract does not necessarily mean transaction and sale, and there are no special rules of sale, including the right of pre-emption and the options specific to the sale. Naturally, due to the same contractual nature of partition, the possibility of rescission (rescind bilaterally, cancellation of a contract by mutual consent) and applying other options can be imagined and realized in separation.

Understanding the nature of the shares of commercial companies has a great effect on correctly explaining the nature of their transactions and exchanges. Different perspectives have been presented in explaining the nature of shares. One of the most important views is the one that believes in object being or objectivity of the share right. According to this view, the rights that exist for the shareholder are reflected and embodied in the share sheet itself and become objective property. This view is in contrast to the view that considers the share as debt or the expression (explanatory) of chose in action. To prove the objectivity of the shares, several reasons have been cited, including the validity of the sale and the mortgage of the shares and the securities of the shares. In the present article, after explaining and criticizing the arguments cited in this view, while examining the view that the share is considered debt, an attempt has been made to prove that the share belongs to the category of “right” by reviewing the concept of property and its types, and considering the formation of a joint stock company.

The legislator stipulates in Article 342 of the Civil Code of the Islamic Republic of Iran: “The amount (quantity), kind and description of the object of sale must be known”. This article is rooted in Imami jurisprudence and according to jurists, lack of knowledge about the kind, quantity (amount) and description of the object of sale causes aleatory which is forbidden and aleatory in the transaction causes invalidity. In this position, if an unknown sale is concluded with the attachment of a known object, it is debatable whether the obstacle of aleatory will be removed with a known attachment or not. The positive rule (statute verdict) of this transaction is a dispute among jurists. In the meantime, Imam Khomeini’s argument is completely different from the views of other jurists and states as follows: the narrations in this regard, in the position of expressing the correct verdict for the unknown sale to the attachment of a known object -which is invalidated by aleatory- may not; rather, the mentioned narrations have entered a place where there is no aleatory at all. The result of research in this regard shows that in an unknown sale with the attachment of a known object, or like the Imam (may Allah have mercy on him), the narrations included in this issue should be abandoned and such a sale should be considered invalid; because extracting the verdict of authenticity from these narrations is contrary to rational rules, or if one believes in the existence of consensus on the authenticity of this sale, should suffice with certainty (up to the certainty) (texts) and it is not appropriate to use the known appurtenance as a general rule for the allocation of the unknown sale prohibition was accepted.

The issue of divine intention endowment and its ownership have always been controversial among jurists, while most of the predecessors consider endowment as a kind of worship requiring intention. Many of the successors took it dedicated to the recommendation like there are variety of different opinions in determining the owner of what is endowed. On the other hand, most of the recent jurists consider endowment as an irrevocable contract and take the irrevocability a reason to exclude intention. While most of the former jurists didn’t mention the contract. This study, written in a descriptive - analytical method and library style, tries to specify and analyze opinions and reasons logically and briefly. From the viewpoint of this study, solving the issue depends on the precise lexicology of the word “Charity” in the traditions. No thing that “endowment” was expressed “charity” in most of the traditions and early Islamic centuries along with some evidence differentiating endowment from other charity instances, leads to realizing that endowment is a kind of necessary persuasion requiring intention which makes it irrevocable and the endowed property after endowment enters the credit ownership of God. This study also indicates how endowment changed from formers’ conditioned charity with intention to latters’ unconditioned contract with intention.

Considering that receiving a sum under the title of underwriting in endowment properties has become common by the trustees, the main issue is on what jurisprudential and legal basis this amount can be justified and what is its status? In this article, which first described the underwriting in a descriptive and analytical method and then analyzed it based on the purpose of the donor (founder of an endowment) and the benefits of the beneficiaries, it was proved that receiving the underwriting, if it is in accordance with the purpose of the donor (founder of an endowment) and the benefit of the beneficiaries, is legal and lawful that in this situation, like the endowed object, must be spent for the benefit of the whole beneficiaries. In terms of function, the payment of the dowry by the tenants of the endowment property is considered as a consideration (replacement) for the possession in the object of endowment, because the tenants are entitled to the construction of the building on the endowment land by paying the underwriting.

In the literature of Shiite jurisprudence, the formology of legal jurisprudence is one of the general rules of transactions. Sometimes, Shiite jurists disagree about the format of some legal jurisprudential practices. Guarantee is one of the acts whose formology is a point of contention. Well-known Shiite jurists consider guarantee to be a contract, while other jurists consider it to be a unilateral contract. An examination of the texts of Shiite jurisprudence shows that the followers of each of the two mentioned views, regardless of the historical course, which is one of the effective matters in recognizing rational credentials, turn to the interpretation of the format of guarantee. Therefore, the historical analysis of guarantee formology in the scope of Shiite jurisprudence literature is the aim of the present study, which descriptively examines the written works of Shiite jurisprudential doctrines and schools and assesses the possibility of speech from a new perspective and it comes to the conclusion that contrary to the two views mentioned above, guarantee has both forms of contract and unilateral at the same time, and the determination of each of these two forms depends on the will and action of those who undertake to write the guarantee and depending on their will, they can sometimes make a guarantee in the form of a contract and other times in the form of a unilateral.

In a transaction with another’s property, when the owner returns to his property and discovers the corruption (invalidity) of the transaction, the seller is obliged to return the price to the customer. In the meantime, the responsibility of the seller in order to guarantee the guarantee (responsible) for claims in connection with the ownership (guarantor for compensation in cases which the object of a sale belongs another person) and compensation of the indemnities incurred to the ignorant customer raises the question of what criteria and standard are there to calculate the compensation for the devaluation of the price? The uniform vote of judicial procedure No. 733 of the Supreme Court is an important step in responding to this legal problem, but there is still disagreement over the scope of compensation for the subject of the Supreme Court’s ruling. Some votes consider the criterion of compensation in the seller’s obligation to return the price based on the rate announced by the Central Bank, while others consider the seller to be obliged to compensate the value of the seller on the day of object (price at the time of delivery). This research intends to evaluate the mentioned decision analytically and in short, it can be definitely said that the compensation of money inflation according to the criteria announced by the Central Bank is able to compensate damages and the imposition of an obligation beyond it is contrary to the basis of guarantee (responsible) for claims in connection with the ownership (guarantor for compensation in cases which the object of a sale belongs another person).

If there is a dispute among family members due to the antagonism of their rights, it is necessary to prefer the right of one over the other according to the criteria existing in the principles of jurisprudence and law. Some of the most important cases of antagonism in family law are: antagonism of right to housing and headship of family, antagonism of right to divorce and remarriage, antagonism of mother remarriage with custody of child, antagonism between father’s guardianship with child privacy, antagonism of father and mother right in child birth etc. The present research uses a descriptive-analytical method to investigate the antagonism of rights in the family, which also tries to express the solutions to resolve these antagonisms while investigating some cases of antagonism. Considering the preferences expressed in the principles of jurisprudence and the spirit of legal article and solutions provided by the legislator to resolve antagonism cases, it seems that the main goal of the legislator in resolving antagonism and legislation is to maintain the foundation of the family

Most authors consider unauthorized transactions in the Iranian legal system as one of the general rules of contracts and have extended it to permissive and covenant contracts. This generalization (expansion) has led to rulings that are sometimes contrary to public order. For example, he obligates the principal to a contract whose obligor is unknown to him. On the other hand, it is not possible to identify covenant contracts that merely give rise to an imperative rule. In English law, the transaction of another person’s property may be made to the unauthorized person or the owner in the form of a covenant, which in the first case is exceptional and in the second case is in accordance with the rule. The complexities of Imami jurisprudence in separating the imperative rules from the status rules, as well as the fact that the jurisprudential reasoning system is more systematic than in British law, have caused the scope limitation of the possibility of concluding covenant contracts in a form of unauthorized contract in Iranian law. In this article, by comparatively examining the provisions of covenant contracts and the effects of unauthorized contracts in Imami jurisprudence, Iranian and British law, we come to the conclusion that concluding a covenant contract in Iranian law is not a general rule in contracts and it is possible only if the subject of the transaction or the subject of the obligation is the property of another and if the act was committed; is possible when to have financial effects.

The jurists have briefly considered the ruling of obedience to the parents and have considered two opinions in total: the obligation of obedience to the parents absolutely and the non-obligation of it absolutely. Due to the lack of detailed discussion about it in jurisprudence, and the existence of ambiguities in this regard, the legislator made a mistake and while misusing some words and customary interpretation of the issue, in Article 1177 of the Civil Code, ordered children to obey their parents and considered it necessary to respect them. In this study, which was conducted in a descriptive-analytical method, while concluding that there is no religious document indicating the obligation to obey the parents, and what is there only indicates the sanctity of the disobedience and annoyance of parents. The beginning of Article 1177 has been considered as lacking jurisprudential aspect and by criticizing it, it has tried to edit it.

Today, in the field of agriculture and animal husbandry, new meat and plant products called transgenic are created by genetic engineering, which due to its novelty, it will be necessary to study the position of the legislator and explain the restrictions and necessary conditions. In particular, scientific research has considered it detrimental to public health, and consequently the existence of dissenting and agreeing opinions, as well as legal gap (legal absence of required laws) in the relevant laws to ensure consumer rights and explain strong executive guarantees and other cases has made it one of the serious areas for jurisprudential and legal debates. In this study, while analyzing the arguments of those who believe in legitimacy, considering the possibility of applying rule of prohibition of detriment (rule of harm) in eliminating the expectant (possible) Shari'a rulings, as well as the rational and narrative obligation to avoid the expectant (possible) harm when the expectant (possible) harm is not negligible compared to the benefits that is motive on action and other controversies arising from their arguments, it seems that these products are not the permission for the mere possibility of loss when the obvious and apparent benefits are opposed to the expediency of preserving life and the right to health of the whole society and life. Therefore, it may be possible to establish a conflict between the permissibility (principle of permission and authorization) of taking this action and the observance of precaution in saving human lives, and according to the rule of more important instances exclude the important ones, the duty of mukallaf (obliged) should be clarified as in the questionnaires of a number of marāji (authorities, source to follow or religious reference) have considered the precaution to leave this action. In particular, it can be seen that concerns about the definite or potential risks reported have significantly changed the policy of developed countries in the consumption of these products and turned attention to the export market.

Studies show that if one of the contracting parties decides to abort his option of lesion, if he means enormous deception, the option of evident deception will not be aborted from him. In addition, evident deception has not been mentioned in the law. Therefore, it will be important to distinguish enormous deception and evident deception (in fair litigation proceedings). To achieve this, it is necessary to evaluate the determinants. The findings of this research, which was done by descriptive-analytical method, show that the standard of custom absolutely (as stated in Article 417 of the Civil Code) cannot be accurate and free from defects to distinguish enormous deception and evident deception. Because custom, in explaining the cases of loss, considers the financial solvency (ability) of the contracting parties, time and place, terms of the transaction and the value of the object of sale. Therefore, customary loss cannot be considered without considering the situation of the contracting parties. Therefore, by explaining and distinguishing between financial loss and status loss, the best criterion for distinguishing is custom, which is not custom by considering only financial loss, but custom by considering status loss. Article 419 Civil Code seems to confirm this view. Therefore, it is suggested that the legislator take action to elaborate on Article 417 of this law.