نشریه فقه و حقوق خصوصی
پیاپی 3 (بهار و تابستان 1398)

Genetic technology and its application on man is one of the newly discovered scientific issues that helps genetic modification of human forces and capacities to change him into a super-human. Genetic modification of human capacities is creating a change, altering or genetically modifying human genes so that some organs function beyond natural limits of humans. Genetic modification does not pursue treatment of people with certain diseases; rather, it reinforces genetic characteristics of a healthy human. The general ethical codes and principles as well as the rule of wisdom that are based on the advantages and disadvantages of using this technology, serve as guidelines for us in issuing an ethical rule on reinforcing human capacities through this technology. To that end, this paper intends to have access to a crystal clear ethical rule on genetic modification based on ethics and Fiqh or Islamic jurisprudence. We will study genetic modification of human capacities by genetic selection of the embryo in comparison with genetic modification of human capacities through genetic recombinant. In the meantime, we will discuss in detail the disadvantages and damages coming from genetic modification, highlight its unethical manners and propose its prohibition by law.

In this study, we have classified digital data into three groups to precisely investigate digital data value and ownership: (1) Digital data with foreign likeness. Cyberspace is an environment for intellectual property such as computer software that are available as digital data. (2) Big data that is naturally realizable outside the network but is available in cyberspace since it is large in volume and time-consuming for external handling. (3) Data such as domain and web hosting that are instruments for cyberspace and there is no foreign likeness for them and they have been created according to the requirements of the cyberspace. The value of the digital data is determined by the data’s economic value on one hand, and on the other hand, by inference to the types of properties in Fiqh and Islamic law. Ownership, too, in the context of full claim on digital data is acceptable due to the advantage of possessing it. In this study, we have studied each category under a certain legal system with respect to the characteristics of each category and qualities of properties according to Fiqh and Islamic law: The first and second groups – as intellectual rights – are placed under the principle of intellectual property and its rules of ownership. Cyberspace instruments shall be considered as the infrastructures such as hardware and the resulting benefits as well as ownership of such data will be investigated under civil property system.

Breach of contract is economically efficient only when the cost of contract enforcement for the obligor surpasses the resulting benefits, thus the obligor accepts payment to the obligee for the damages, placing him at a position of contract in force to avoid further damages to himself. The preconditions for efficiency in breach of contract requires the sum of damages be less than the real imposed damages and in financial assessment of the damage the personal value of the contract is not calculated in favor of the creditor, sufficing to a criterion only. Some legal criticisms are: neglecting ethical values, reducing planning capacity, elimination of profit for the seller of precious goods, and contradiction with the principle of freedom. The legal and economic definition of efficient breach of contract, reviewing pertinent criticisms and a comparative study with the Western legal system are among the major achievements of this paper. Apparently, despite all problems Iran’s legal system has to challenge with to have the theory accepted, thanks to its many advantages efforts should be maintained to pave the ground for translation of this theory into action in Iran. Some solutions to that end, are the following: reinforcing legal system in full compensation for the damages, admitting Pareto efficiency rule, giving priority to social benefits over individual gains, including some economically efficient concepts as prerequisites for realization of economic justice, admitting the theory in view of ethical values, proving its lack of contradiction with specific performance of the contract.

In British law, equity courts have created and expanded the principle of “undue influence” due to restrictions with principle of duress to compensate damages imposed on the victims. This legal institution is legally applied in the case of a person who had been under the influence of a third party, his parents for instance, when signing a contract. Therefore he/she is not legally committed to the terms of the contract he has signed. Enforcement of undue influence is one reason for unfairness of the contract and legally sufficient to terminate it. The principle of duress and compulsion in Islamic jurisprudence supports the will of weak and under-influence individuals to some extent. Duress in case of threat and lack of satisfaction will render the contract null and void. Compulsion, in its totality, has no effect on the contract and it only removes penal liability. Only misuse of compulsion and emergency contracts signed under duress (i.e. in cases compulsion has been practiced intentionally by the other party) are similar to the undue influence, neither of which has received outright support by the legislators. After a comparative study of these two legal institutions in Iran and the UK, this paper came to the conclusion that there is a need to reform the principle of duress and compulsion in our legal system.

With-profits bond is one of the modern financial instruments in Islamic system of finance. The issuer of these bonds will be able to offer benefits or future services to the holders of the bonds while maintaining the original durable property. Therefore, the holders of these bonds will be able to present the benefits and future services with ease of mind upon accumulation of small capitals to expand this business. On the other hand, the holders of these bonds will enjoy future benefits and services upon a purposeful program and with cheaper prices. They will be also able to transfer their rights in financial markets. Lease bond is another Islamic financial instrument, the holders of which share the joint ownership of the property as is. The resulting benefit is thus distributed according to the lease contract among the issuers or owners of the bonds. Due to some similarities in these two types of bonds, some have mistakenly hypothesized that lease bonds shall cover the advantages of with-profits bonds. This paper has resorted to library research method to review the nature and structure of with-profits bonds to highlight the need for issuing these bonds in comparison with the lease bonds.

The validity of probative evidences is one of the fundamental discussions in methodology of religion. Probative evidences (religious circumstantial evidences) are among the evidences needed for interpretation and inference of the Sharia rules, the signifiers of which–in addition to comparative signified–have sometimes evidentiary effects. Evidentiary effect in methodology means the religious effects attributable to the rational instruments, necessities and requirements, either ordinary or accidental, which can be taken as evidence or codes of action. In case of the validity of probative evidence and its reasons, three theories may be put forth: Some jurists attribute the nature of evidence, in terms of proof, depending upon its validity thus rule on absolute validity of probative evidence. Some others, however believing in absolute validity of the probative evidence, have attributed the reason to the quality of proof and attribution of the reasons for validity of the evidence. The third group of jurists believe in a detailed manner which draws a line of separation between various types of evidence and probative evidences. Apparently, to study the validity of probative evidences, the reasons for validity of the evidence must be taken into consideration. Therefore, if the reason behind validity of the evidence is an instance of compulsory obedience, its probative reasoning shall not be valid but if it is based on logical and consistent usages (which is true in the case of the majority of cases) the criterion will be constraints in logical usages and related terms. This is because men of reason at times take something as evidence while at the same time reject its probative values, such as evidence on probation, possession, presumption of marriage bed, and confession.