نشریه آموزه های فقه مدنی
پیاپی 25 (بهار و تابستان 1401)

After accepting that the requirement of the essence of marriage contract is not marital relation and sexual intercourse, one of its related branches is the state of dowry therein stability and instability in the supposition of stipulating not engaging in sexual intercourse if in the mentioned situation also like the cases of divorce, after the marriage contract, the ownership of wife to the half of the dowry is established and to the other half is not firmed up or her possession to all of dowry for just the marriage contract is established. After analyzing and studying evidences and the opinions of Islamic jurists and law scholars and with the documentary-analytic method the authors have accepted that the sexual intercourse is a precondition and restrictive factor for the establishment of dowry and although there have been aspects for establishing the total of dowry in the condition of not engaging in sexual intercourse but these aspects are disputable and in contrast the aspects such as the stipulated benefit in the case of the benefit of condition, the validity of the title of the wife who are not engaged in sexual intercourse in the situation of divorce, the possibility of tanqih al-manat (extraction of the underlying reason) being of the cases of establishing half of dowry in the situation of the annulment of marriage before sexual intercourse indicate the division of the value of dowry in half. Therefore, the opinion of dividing the dowry in half has been justified and substantiated.

The growth of urbanization and immethodical structure and high density and living space shortages can cause damages for neighbors. In all legal systems, under certain circumstances a victim can sue a claim for damages to be compensated. This paper with analytic-descriptive method is to find an answer to this problem what the base and provisions of civil liability originated from neighborhood damages are in three legal systems: Iranian, Egyptian and English. In the Iranian legal system the only legal article related to adjacent lands is Article 132 of the civil code. But in Egyptian law system some articles have been issued for this important thing and also English precedent in this case encompasses different opinions. The result shows that the base of this liability in the Iranian law system is opposability and in the Egyptian law is fault. English court judgments in this ground incline to strict liability. In all examined legal systems for the realization of liability defendant’s acts should be unreasonable, frequent and ongoing and in adjacency of the complainant although it is seen varieties about how to enforce these conditions.

The problem of the realm of fiqh relates with an extensive network of subjects which each has been propounded in its specific area. One of the effective subjects to solve this problem is to extract the quiddity of legal rules to get its range. Explaining the quiddity of permissibility (Arabic: اباحه ibahah) and mentioning the permissibility is the absence of legal ruling or the ruling of permissibility has a vital role in the problem of the fiqh realm. Especially, when the relationship between permissibility (Arabic: اباحه ibahah) with the principle “عدم خلو” is described well; a continual principle -according to claim a consensus on it- in Shia fiqh and the principles of fiqh which its contents are: no events are without legal ruling “عدم خلو الواقعه عن الحکم”. Besides the naqlior revealed arguments “everything -halal or haram or what people need- but it is in the holy Quran or Islamic tradition” martyr Sadr for proving this has utilized the reasoning argument i.e. God’s grace. Although the principle of grace (lutf) is considered valid and has a great effect in the problems such as the comprehensiveness of sharia, the relationship between fiqh and law but it has not appropriately clarified as the position of the jurist such as Imam Khomeini with adducing to some of his sayings in the absence of his important analysis of permissibility and the absence of ruling has been gathered. The present note with referring to the authentic Shia usul and fiqh texts and with jurisprudential method the opponents’ opinions of this principle such as Muhaqiq Naraqi, the late grand Ayatollah Khoei and Imam Khomeini have been surveyed and at the end with close attention to the space of issuance of narrations and debate on reasoning argument of God’s grace it has valued (believed) the authenticity of some opponents’ reasons.

A will for waqf (Arabic: الوقف endowment of property) as one of the “wills” and legal acts which has been suspended to the death of a person has been paid attention to by the jurists and law scholars. But the nature of such will has been constantly disputed and they do not believe that there is no reconciliation between it and the wills of promissory (ahdi) and transfer of ownership (tamliki) but they think that because in the case of “a will” for waqf, transferring of ownership in relation to the testator’s property is occurred this category of “will” is placed under the third category i.e. a will for disposing off the property and besides “wills” such as a will for manumission (freeing slaves or a release from slavery) and ibra' (Arabic: ابراء waiver on the right of claim). But observing the present regulations in the two legal systems of Iran and Egypt, a will for waqf is counted as one of the instances of tamiliki wills. According to this type of will waqf for a property is enforceable just in the case of creation (making) of a will and without the need for an independent creation by the legatee (Arabic: موصی له al-mūṣā lahu) or legatees. In respect of being the legal entity in waqf assets (Arabic: موقوفه) in Iranian and Egyptian legal systems resulting independent assets, competence and the capacity of rights and duties for legal persons, as just the death of the legatee the asset itself extracts from his possessing -owning property- and transfer to the possessing of the legal person of waqf assets; therefore, a will for waqf with regard of transfer of ownership of testator’s property to the legal person of waqf assets is counted of a will of the transfer of ownership (tamliki).

The realization of the civil liability requires three pillars: the pillar of loss, damaging action and the causal nexus between the damage and the incident (causation). The “loss” element is more important than the others. Generally, law views “loss” compensable when it has certain conditions and criteria as in the Iranian legal system “the direct loss” and in English legal system “loss being too remote” is of the conditions of the recoverable losses which have been introduced. In the Iranian legal system if a harm and loss in indirect way and through intermediary is caused injury to a body or property it is not recoverable and its reason is there is doubt in attributing the indirect loss to the agent of loss. The approach of The Iranian legal system and English legal system to the indirect damages is not the same. The concept of indirect loss in the Iranian legal system relates to the pillar of causation while in English law has a close relation to the reasonably foreseeable principle. In the Iranian legal system, it is a principle that indirect loss is not recoverable but in English law in most cases is recoverable. Meanwhile determining the position of indirect loss the present paper has propounded the possibility of the compensation of indirect loss under some certain circumstances in the legal Iranian system.

“Necessity” as one of the elements of precluding international responsibility of states is interest of states in certain and exceptional circumstances. The comparative study of necessity in two systems of international law and Islam represents some distinctions along with many similarities. The application of this the essential principle in armed conflict titled “military necessity” to violate the safety of the civilians who are shield is a challengeable matter because the human shield has been prohibited and criminalized by international law and Islam. Therefore, the question is what the nature and effects of the principle of necessity are in the international law and Imamayeh fiqh and how the conduct of parties in dispute towards civilians and their properties which have been used as a shield should be. This note with the qualitative research method and with utilization of the legal interpretation methods of the Quran verses and traditions and the opinion of jurists and historical study of the holy prophet biography in wars has been adopted. By reviewing jurisprudential documents and sources it has achieved the result that the principle of necessity has an exceptional nature in both legal systems and merely it is permitted in the case that the essential interests of the state is in danger. Consequently, with the prohibition of any damage to the human shield, in the situation of the exigency of necessity and with observing the cautious measures, it is yet possible to attack military objectives.

The development of international commercial contracts and the growth of the isolation of domestic laws from religious roots from one side and jus cogens or ius cogens (compelling law) written in the religious texts on transactions from the other side has established this problem that parties of agreement can deviate from domestic (national) rules which are enacted by states to choose the religious law as governing rules in an agreement. Does the tribunal itself without the consent of the parties in the claim exercise the religious law as the non-state legal rules? Sometimes parties of the commercial agreement for reasons such as religious interests tend to exercise the religious law as the governing rules over the agreement. Sometimes, the tribunal in spite of the silence of the parties in the claim will enforce a non-state law over the subject matter of the arbitration. Although the reality of the commercial world makes it possible to be chosen and enforced the religious principles by parties and the arbitral tribunal in the international commercial contracts but the practical procedure and the regulations of the arbitration in the different legal systems indicating impossibility of enforcement of the religious law by the arbitrators in the supposition of the silence of parties in claim (parties of claim or dispute).

In article 774 of the civil code following the well-known opinion in fiqh, the void of the pledge of intangible assets has been specified. The important bases of the void of the pledge of intangible assets have been codified the inalienability of the seizure of the pledged intangible assets and the lack of providing trust and the failure of the payment or settlement of the debt. However, all these cases in fiqh have been questioned. In the legal system of Iran, many regulations have been enacted latter to the civil code that they have no consistency with the traditional rules of the pledge. Some of them have excluded the seizure of the pledged intangible assets from the provisions of the validity of the pledge and some others have recognized the definite nontangible assets such as credits and stocks of guarantee are collateralizable. On the other side, the voidance of the pledge of intangible assets makes such assets to some extent go out of the economic cycle of the society and it causes losses in the business cycle and deprives the property’s owner from the complete benefit of his asset. All these factors make an endeavor for knowing intangible assets be necessary. There are five important approaches have been assessed in this paper which are: utilization of agreement with a no-name, utilization of the Agreement of Pledge utilization of transactions with the right of redemption, acceptance of the implied abrogation (implied appeal) of articles 774 and 772 of the civil code and their exclusion of jus cogens (compelling law -peremptory-).

Today, final products and consumer goods with high volume is an essential a problem; in addition to the variance of their raw materials (unprocessed material, or primary commodity) it is necessary to present prefect information to consumers with no knowledge. Currently, only some medicines have information about how to use, dosage, dosing schedule, efficacy, contraindications and side effects in relation to some patients that the implementation of this way is essential for all commodities (goods). Producers are required to label necessary information about their products, containing all ingredients, damages and side effects to people on their products, truly. But many producers with the intent of self-seekers avoid providing such information. From the other side, the lack of the appropriate responsibility has caused to increase products with no information or with imperfect information that will cause damages to consumers. The main question is what the basics of civil and criminal liability of producers are in the situation of not providing the information of goods and what liability follows the absences of not providing true information. This research with analytic-descriptive method is to study some jurisprudential maxims (Arabic: القواعد الفقهیه al-qawa'id al-fiqhiyyah) which can be the compiler of the efficient civil and criminal policy to punish producers for violating. Although the positive law in the country has mentioned to the regulations and performance bonds but it has not been accountable. Therefore, this paper is going to create a kind of responsibility for producers with the application of the fundamental jurisprudential maxims such as no harm (Arabic: لا ضرر la zarar), warning, the obligation to inform unconscious people of danger that they confront “وجوب إعلام الجاهل فیما یعطی” and risk that indicates the liability for the imperfect information and has resulted that the producers with attention to the type of goods should observe the available requirements of consumers in common and special consumers such as ill people, children and old people and with the knowledge of the circumstances of time and place should present appropriate information of goods; otherwise, producers will not be freed from civil and criminal liability.

To determining the relationship between logic and contract interpretation it could be paid attention to logic from two views: particular and general. The relationship between interpretation and logic science in a particular meaning could be briefly studied in three realms: argumentations causing interpretation, logical survey of literature and argumentations encompassing the logical interpretation on contract. In the stage of argumentations causing interpretation a particular attention should be paid to the role of both parties’ will of a contract in drawing the valid inference from premises that it will appear in the form of necessity of achieving one of the provisions for following conclusion of syllogism i.e. the repetition of middle term in both premises. The second stage in the developmental process of the relationship between logic and interpretation should be dedicated to the logical reviewing of the text of the agreement that it will be shaped with using the tools of the utterance discussions of the logic science and also reasoning principles governing in the logical epistemology. The last stage of this interpretative process relates to the argumentations surrounding the logical interpretation of the contract or arguments resulting “final decision” or “final judgment”. It has specific concern with the issues of the argument (hujjat) in the logic science i.e. analogical arguments. Also in common and conventional aspect of the logical interpretation, social norms and legal ideals such as ethics, justice and fairness as factors which determine the amount of nearness of the two logic and interpretation concepts of the logic and interpretation have been noted.

The requirement of marriage contract and its importance causes that its dissolution limits to specific cases and its annulment is not possible for occasion or occasions and it is not dependent on couple’s will. Involuntary termination is one of dissolution of marriage and of its occasions is apostasy (Arabic: ارتداد irtidad). The state of dowry (Arabic: مهر mahr) is one of the important issue in the dissolution of marriage for one of the parties’ apostasy that it has not been mentioned in the rules of Iran. And the judges and law scholars must refer to the opinions of the Islamic jurists to obtain the verdict of issue. The inexplicitness of the legislature to state the verdict of the issue and the disharmony of the jurists’ opinions with considering different assumptions of the problem, it is necessary to be made research to answer this question what the duty relating to dowry is at the circumstance of the apostasy of one of parties in Iranian legal system and Shia fiqh. It was studied this subject through a descriptive-exploratory research. Findings show that at the lack of stating the verdict of the issue by the legislature it should be refer to the jurists’ opinions. At the study of the jurists’ opinions it was revealed that according to different aspects of the issue it has been presented different attitudes that the present pater has attempted to examine the opinions and criteria and verdict of the issue in different circumstances.

The important issue which is considered by Muslims and also the People of the Book (Arabic: اهل الکتاب, Ahl al-Kitāb) is to be beneficiary of it is if according to the holy Quran and jurisprudential evidences the People of the Book (the Jews and Christians) with considering that they possess a book, a revealed scripture can live in Mecca or these teachings have treated with them like infidels and the enemy of Islam and have banned and prohibited them to live. This paper using the descriptive-analytic method has examined this issue and with applying jurisprudential tools has studied and criticized the reasons of this prohibition and ban. The result indicates the lack of efficiency of the Quranic verses which are referred to and also the mentioned traditions providing no indication for this claim. In normal circumstances with adducing to the first principle of human freedom in choosing the place of residence it is issued that the legal verdict is permissible.

In this note it is investigated one of the jurisprudential and legal challengeable issues i.e. puberty. From the early times the well-known jurists based on definite proofs have issued fatwa for puberty in girls beginning in the age of 9 and in boys beginning in the age of 15. Some of the jurisprudential-legal thoughts have planned to criticize this base and have challenged it with respect to verbal and non-verbal evidences. But these challenges with the approach to Fiqh-e Jawaheri have been criticized and analyzed and at the end the opinion of the well-known Shia jurists has been approved. But at the position of theorization and with observing traditional fiqh standards a new look to the proofs of puberty has been formed and the qualitative and reasoning opinion has been strengthened.

Undoubtedly, defining the type of cultivation and farming is not of the provisions of the validity of share-cropping (Arabic: المزارعه muzara'ah) contract and in the supposition of the literal and contextual unconditionally, the sharecropper (labor owner or tenant) can harvest every crop he desires but if the type of cultivation has determined the sharecropper has no right to harvest other crops. If the sharecropper has violated and harvested other crops, the question is what this violation will impact on share-cropping (Arabic: المزارعه muzara'ah) contract. Islamic jurists in reply to this problem have serious disagreement and the amount (number) of their opinions is more than 10 opinions. In the present paper which has used the descriptive-analytic method this outcome has been achieved in the supposition of the violation of sharecropper if it is not possible to oblige him to harvest the agreed cultivation the land lord has right to annul and therefore, the ruling of article 537 of the civil code which is the voidance of Share-cropping is not valid and should be reformed.