فصلنامه جستارهای فقهی و اصولی
سال هفتم شماره 1 (پیاپی 22، بهار 1400)

Although the general and the particular like unrestricted and restricted are one of the most complicated Uṣūlī (principles of jurisprudence) topic, its results are undeniable in Islamic Jurisprudence and law. Unfortunately, the complication of this issue has caused the emergence of various opinions and ideas in this cases which sometimes led to negligence of some very obvious yet important issues by the great Usuli Scholars. In the issue of connected particularizer, for example, renowned majority of Usuli Scholars believe that particular prevents the implementation  of appearance in general , or in better word, general would become Muanwan after specification. Having relied on the intellectuals’ attitude, the writer at first tried to prove the inaccuracy of alignment of exception by ʼIllā attribute in connected particularizer, then confirm its important results including permissibility of adhere to general in Shubhat al-Miṣdāqīyya (doubt in referent) while examining the exception by ʼIllā features. Of course, it is mentioned some confirmations in the statements of Usuli Scholars which indicated the permissibility of adhere to general.

The Mujtahid (master jurist), after doubting in Ḥukm Taklīfī (defining law) and not finding ʼImārah (indication leading to a speculative reasoning), unavoidably performs practical principles to relieve confusion. Subjects which are the place of performance of practical principles may have with them inherent, implicant and attendant whether they are legal or non-legal or direct or indirect. In principles of Jurisprudence, the scope and validity of each of these cases is examined under the title of Muthbit Principle. Considering logical order, before discussing on validity this principle, one must first be introduced to the concept of Muthbit Principle and determine its scope as well. With a brief view at the provided definitions for Muthbit Principle by Usuli scholars, it can be clearly seen the essential difference between each of those definitions. Having used the analytical method, this study counted and criticized various definitions of Muthbit Principle. Finally, a comprehensive definition which can include all components of said principle has been provided. Muthbit Principle is a principle that, in order to achieve the legal ruling, seeks to prove inherent or non-legal intermediates, implicant or legal attendant which is arranged on legal and non-legal intermediates. So, legal intermediates which follow legal effects will also be a Muthbit Principle.

Banks and banking operations have long been the focus of Muslim scholars' attention. In addition to examining the nature of banks and banking operations, these scholars have tried to bring them in line with Islamic criteria. The modernization of banks have, on the other hand, confronted humanity with a phenomenon called 'money creation'. It can be claimed that this phenomenon has not been well examined in spite of being importantly effective in economy. For example, money creation and its Islamic jurisprudential effects have been overlooked in the law of banking without riba (interest) enacted after the Islamic Revolution. With a careful examination into the sources of Ja'fari jurisprudence as well as the civil code and the law of banking without riba, the banking system creating money seems to suffer from two major drawbacks: first, in Islamic banking contracts like in qardh al-hasan (interest-free loan) and civil partnership, money creation leads to transactions with debt while Islamic jurists say transactions in such contracts must be 'object'; second, regardless of previous flaws, the mechanism of money creation used by commercial banks seems to be a manifestation of unlawful ownership.

Salaf or Salam (Futures Contract) is one of the types of sale and is opposite of credit transaction. According to Fuqahā (jurists) object of sale in futures contract is a general descriptive in seller’s debt which is sold for cash and for a due date. In addition to general sale rules and regulations, it is imposed special rules for this sale such as taking all prices in contractual meeting before buyer and seller separating from each other, determining the delivery time, possibility of delivering the goods at the due time and prohibition of selling the object before the due time. While expressing a valid available ʼIjmāʻ (consensus) in this issue and referring to different jurisprudential books in order to refute the claim that agreement of the jurists is weak, this article in an analytically-descriptive method and with a fundamental-applied approach has discussed the presented reasons in this sub-jurisprudence among the two major sects (of Shi’a and Sunni). Considering the effectiveness of futures contract in financing production and moving towards the removal of usury from economic relations and in order to solve problem of not-allowing the reselling of object before the due time and benefit from this contract in capital market, Islamic economists suggest the use of contracts such as compromising the object of sale, non-gratuitous donation and parallel salam. It seems, considering being appropriative of futures contract and affirmative barriers of parallel salam and non-gratuitous donation and compromise, that it is impossible to apply this type of contract in capital market due to frequent resale of object of sale in secondary market and discrepancy of traders’ mentality with three mentioned conditions for correction of parallel salaf and such solutions has conventional union with the examples.

The main focus of this research is to examine the value of the might of human labor based on valid jurisprudential criteria for valuing things. The result of this discussion is in the discussions such as "the guarantee of the elimination of the might of human labor," "the principle of the necessity of working the debtor," "putting human labor against the dowry" and "leasing human labor" and showing its effects in The process of examining the reasons for any of these will be necessary and This explains the need for research on this subject. In order to achieve the result, the conditions of the value of the things were analyzed on the basis of customary and jurisprudential rules. And, with the proof of the existence of a valid jurisprudential value of the might of human labor, the value of this labor force was accepted. Then six Objectionable about the value of the might of human labor were expressed and, based on Existence of conditions of value of the might of human labor, those were answered. And Some of the jurists' words were also given to confirm the subject matter. Then, with the addition of two confirming of the value of might of human labor in the phrases of the jurists, and the expression of the fruits of the value of human labor, the discussion came to an end. The present study also discusses the commitment of all Shi'a jurisprudents to the value of the might of human labor in the "putting human labor against the dowry" and "the lease of these human labors," and their disagreement with the theoretical discussion of the value on these human labors.

Farming partnership contract is one of the obligatory contracts which obligations resulting from it can impressed by general excuse. The topics of general excuse are mostly mentioned under the rubric of force majeure while it comes under the rubric of general excuse in the jurisprudential sources. This topic is of special interest to jurists in some of jurisprudential chapters, especially in farming partnership contract. Its various rules and dimensions have been sporadically discussed. In farming partnership contract, a general excuse may occur at the time of contract sign or during the farming. The existence of a general excuse basically invalidates the contract at the time of farming contract sign. Because the general excuse is conducive to non-benefit of ground as one of the basic pillars of farming contract. But, there is a disagreement about occurrence of general excuse during the farming and its effect on the contract.  Although some scholars see the emergence of general excuse for the obligee as creating the right of cancellation, they are applying the Istiṣhāb (presumption of continuity) of contract validity. In return, some others believe that the farming partnership contract will be cancelled in this case. The last view which is taken into account in Article 527 of the Iranian Civil Code has stronger foundations, because the general excuse is conducive to the loss of usability of the farm. The usability of the farm as one of the pillars of the farming partnership contract is not only a condition in signing the contract but also is the condition in continuation of that and it is from the existential pillars of farming partnership contract.

Providing the Conditions for more utilization authority in the depth and space of the ground has provided the background for asking questions concerning legal ownership. One of the most important questions is that whether the depth and space of the ground, regardless of its surface, can be transferred to others in the form of contracts or unilateral obligations. The present study seeks to find an answer for determining how to transfer in from of legal actions which being physical goods (ʻAyn) is a non-gratuitous condition in them. In this regard, given the fact that most of the legal actions are such that being physical goods is a non-gratuitous condition in them such as transaction and renting, the matter of the depth and space around the ground has been examined in terms of ‘being physical goods’, ‘right’ and ‘benefit’, finally, being ‘physical goods’ of that accepted and also being ‘right’ and ‘benefit’ of that rejected. As a result, the depth and space around the ground can be transacted independently in those transactions that according to jurisprudential standards the condition of object of sale is to be physical goods and it has involved in it.