نشریه مطالعات تطبیقی فقه و اصول مذاهب
سال چهارم شماره 2 (پاییز و زمستان 1400)

A popular theory of Imami jurists is the condition of paying all prices at the assembly of the short sale contract before the parties to the contract are divided. If this condition is violated, they have ruled that the transaction is corrupt, but on the other hand, this condition does not apply Forward contract. Basically, the idea of ​​this type of contract (pre-sale / pre-purchase contract) today is that customers cannot pay full price and negotiate in installments. This research is written with a descriptive analysis method to test the hypothesis that it is not necessary to pay the entire price at the contract meeting, the client can pay part or all of the price after the contract meeting and any financial agreement on paying feesin installmentsdoes not violate the short sale nature of the transaction, in the author's opinion, the lawyer argued that the situation was distorted.

Judgment is one of the social special positions which Islamic jurists disagree about the issue of occupying it by women. Scholars rely on the Qur’an, Sunnah, consensus and intellectual evidences to prove their own idea. The condition of being a male for a judge was first raised by Sunni jurists. Sheikh Tūsī was the first Shiite scholar who accepted it, as such before him there was no trace of this condition in Shiite jurisprudence. Allameh Hillī firstly was attributed to the idea of consensus on the masculine condition for a judge, as he thought that the women’ judgment would result in social problems and sedition. Many jurists and scholars followed Sheikh al-Tā'ifa (Tūsī) in this issue, and even later jurists claimed consensus on it. Shahīd 'Awwal in Lum'ah, the author of Miftāh al-Kirāmah, the author of Jawāhir, Sheikh Ansārī, and others say that women may only arbitrate (tahkīm). This research analyzes Islamic documents, using the descriptive-analytical method. Findings show that the prohibition of female judging in Islamic jurisprudence is not definitive, nor an Islamic necessary and definite rule. Most Islamic jurists do not accept getting the judge position for women, regarding their ijtihad and inference. They only accept the position of tahkīm (arbitration) which does not conclude the condition of being a man. Therefore, it is not the case that a woman does not have the right to judge. The issue of the possibility of sedition is also a mutual affair for both men and women, which is not specific to the profession of judgment. The inherent and natural differences between men and women in judicial affairs, like other social occupations, play the least role.

Due to their inability to manage their property, insane minors are protected in some ways. They are prohibited from seizing their property and financial rights. . The ruler of Sharia is the guardian and the sharia can also appoint a person as a guardian for this work. In some cases, for reasons such as minor insanity, a person can not manage his or her affairs properly; Therefore, in order to protect the interests of such people and also to manage the affairs related to them, the Shari'a has set special rules and laws in order to manage the affairs of these people according to these limits and eliminate this shortcoming. In the jurisprudence of Islamic religions, special attention has been paid to minor and insane matters and in some verses of the Holy Quran and the narrations of guardianship and financial affairs of children and insane people have been explained. The purpose of this article is to identify the commonalities and differences between the five Islamic religions in the manner and manner of guardianship over minor and insane property and the conditions of his possessions.

This research was conducted by descriptive-analytical method. Is located.

Tolerance is acceptance and respect for races, cultures, and diverse ways of living, thinking and expression; Acceptance and respect from awareness and honesty and power position. Tolerance, which was considered a moral virtue, has entered the field of political philosophy due to historical and social necessities and has finally become a universal cultural and legal norm. Today it is a precondition for peace and development and is considered a macro-policy requirement. The founders and theorists of the Shafi'i religion, under the influence of the theories of the Holy Qur'an and the Holy Prophetic tradition, the wide view of Imam Shafi'i', and the foundations of the Ash'ari school of moderation, have been admirably tolerant. And from the position of scientific authority and privileged social status, they have consciously and honestly respected the leaders and followers of other religions and have considered their ijtihad principles and jurisprudential fatwas to be correct. In addition to theoretical tolerances in practice, the Shafi'is has always faced others on the basis of good understanding and positive interaction. There is ample evidence to support this claim in their written heritage and practice.

In Islamic jurisprudence, it is stated that couples have privacy and independent interests towards each other, and neither of them has the right to enter the other's privacy. But in the customary way of life, it is observed that couples do not consider the security, comfort and strength of the family possible except with the cooperation and interaction of couples, and therefore consider themselves to have common benefits and harms, so it is necessary to deal with issues and affairs. Learn about each other privately. There seems to be a conflict between the recommendations of Shari'a and the customary practice of society. Therefore, by examining and researching the verses, hadiths and the words of the jurists, it was proved by mentioning some documents that some of the behaviors of people in life are based on religious requirements and some have customary requirements. Therefore, in this research, it has been stated that since the beginning of Islam, there are signs of customary approval in the Shari'a, which has become so prominent that it is thought that the custom is preferred to the Shari'a, while the common custom is used to strengthen the family. The sharia side is valid. Therefore, couples, while accepting the boundaries of each other's independence, strengthen the security and comfort of the family and prevent harm from it by interacting and cooperating between each other in independent and common interests.

one of the Judicial verdicts of the prophet (peace be upon him) which is presented currently as a jurisprudential rule, quoted by Ayesha as “Al-Kharaj Be-zaman (Profit against Compensation)”. Although this prophetic hadith has not been quoted through household, but the content of this concept is in harmony with the chapters of condition of sale and mortgage and Shiite scholars rely on it in transaction chapters. Not paying attention to the historical background of narrations and their implication in jurisprudence of the early period causes that some scholars present new analyses from this narration and relate it with governmental discussions. This article which is historical study, investigates this narration and its implication in civil jurisprudence from the point of view of the Shiite jurists Since Sheikh Tusi to Sheikh Ansari. The result of this historical survey is the rejection of this new analysis.Key words: Al-Kharaj Be-zaman (Profit against Compensation), Shiite jurisprudence, transactions.

Khums is one of the obligations that has been consensusly agreed by Imamiyah and the public. However, in the concept of booty, different views have been adopted, some believe in a pretentious interpretation of the word "booty" and only consider the trophies of war, including "Ayatollah Khoei" And some people believe in the interpretation of the word, including Sahib Javaher and Mohammad Kazem Tabataba'i in Mustamsk al-Arwah and Ayatollah Hamedani, all consider trophies, including the benefits of war and other than that, and the new interpretation in which the epistemological sabbagh is dominant has been from the war, which includes the absolute of foreign and internal warfare, which in this research includes the argumentative foundations and documents of both groups. The basis for understanding and interpreting verses and hadiths is examined and analyzed. And the cause of disagreement and challenges about the concept of booty will be Reviewed and explored.

the rules of ghusl are more sensitive because due to the existence of the major impurity, the interruption in the ghusl also prevents the correctness of ablution (removes the lesser impurity). What is the quality of performing sequential ghusl in terms of arranging the washing of body parts based on valid jurisprudential evidences? How is the quality of performing tartibi ghusl in terms of the order of washing body parts in terms of body washing based on valid jurisprudential reasons? Is the popular theory more consistent with the content of the evidence or the unpopular theory? The research method is critical analysis. Is the popular theory of jurists more consistent with the content of the sources or the unpopular theory? The research method is critical analysis. After explaining the popular and less popular fatwa on the condition of the order of washing the body in ghusl, Jurisprudential sources and their meanings are examined. According to the famous fatwa of the jurists, it is necessary to perform tartibi ghusl in three stages. The whole head should be washed first, then the right side of the body thoroughly and then the left side of the body thoroughly and disruption in this way is detrimental to the correctness of ghusl. Their reason is consensus is narrated fatwa reputation, some hadiths, and the principle is precaution. These reasons can be criticized from different angles based on the contents presented in this article. Based on the application of some hadiths and also with the impairment of citing narrations, consensus and fame and the principle of innocence as a condition of redundancy, the popular theory is that it is sufficient to wash the body after the head and the necessity of arranging between the right and left sides of the body is stronger.

Al-Mahr (dower) is obligatory as one of the Islamic rights in marriage contract. As soon as the marriage takes place, the property of the dower is proved for the wife and the wife will have the right to take possession of it. According to the wife's property on the dower, the husband is the guarantor to deliver the dower to the wife without any defects, so If the dower is defective before marriage or becomes defective after marriage, the husband is required to pay recompense. According to the publicity saying of the jurists, this guarantee is a kind of warrantor hand, at the same time, some jurists believe in an exchange guarantee. According to popular belief, in case the dower is lost or damaged, the husband is the guarantor of the dower or the price of the dower. But according to the exchange guarantee, the husband is the guarantor of the pseudo-dowry.

Transformation of relation as a discussed problem under the title of contradiction of arguments in usul al-fiqh, is a way to apply the rules of contradiction of arguments, when there are more than two contrary arguments. According to this way, all relations and connections between arguments are seen and based on specific criteria, rules of contradictions are applied. This article, through description and analyzing of usuli written texts tries to answer if transformation of relation can be recognized as a scientific theory and presented to academic forums. The hypothesis is that this way of solving contradiction can be introduced as the theory of transformation of relation to ‘ilm al-usul. To reach to the mentioned goal and to prove the theory of the article (being an usuli theory), the proposed definitions for a scientific theory, focusing on fiqhi and usuli theories, were analyzed; accepted characteristics of scientific theories were derived and analyzed; and lastly, the essential qualities of transformation of relation were applied on the definitions. The conclusion was that the transformation of relation could be presented as a scientific theory in usul al-fiqh to academic forums. So to explain it there need to see it as a theory with its all details and aspects not just a viewpoint.

The difficulty of enforcing contracts and their effects have been much talked about in legal writings. Nevertheless, the theory of "Hardship" has not entered into our civil code. This gap between theory and pointless practice have many reasons. However, the legal validity of these rules and the possibility of invoking them in the courts has been less discussed. Of course, the court's ruling must be reasoned and documented by law, and other sources. Legal principles are one of these sources. Numerous principles such as loss, denial of embarrassment, observance of good faith, prohibition of encroachment on property, prohibition of abuse of right and prohibition of profiteering in emergency situations, can justify the cessation of the execution of the embarrassing contract and, consequently, the performance guarantee Appropriate such as termination of contract, modification of contract and suspension of performance of obligations is possible. Especially because due to the novelty of the subject, its ruling cannot be found in jurisprudence sources.

One of the mechanisms for supporting children in the Iran’s law is custody. This task is the responsibility of parents from birth, but there are ambiguities about the end of this task. Given that the issue of custody is "child", lawyers consider the end of childhood (puberty), to be the end of custody, but since identifying the concept of "child" is a point of contention, so this thought will not be helpful. However, according to the opinion of shia jurists, reaching the age of "maturity and growth" is the end of custody, which is also ambiguous due to the lack of clarity of the concept of growth. The present research has been compiled in an analytical-descriptive manner by referring to library documents and it is identifying the differences and planning a specific age for the end of custody. Considering the well-known opinion of jurists, examining the various concepts of growth (both financial and non-financial), paying attention to the current society and the customary nature of growth recognition we can say the end of custody can be extended until experts recognize children to continue independent life. There is very little research in this area and their general argument is the age of custody, but this article offers the main solution by stating different assumptions of growth and paying special attention to jurisprudential sources