نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و پنجم شماره 1 (بهار و تابستان 1401)

Dowry is one of the issues agreed in the marriage contract and as soon as the marriage contract is written, the wife acquires its ownership and has the right to demand it from the husband. The lawgiver and consequently the customary legislator, has forged a lien for a woman with some conditions for the executive guarantee of receiving the dowry, so that the woman can receive her dowry by refusing to obey. On the other hand, by concluding a marriage, a man has the right of enjoyment and can derive sexual pleasure from the woman. If these two rights are exercised simultaneously, there will be a conflict between them, because if the lien is exercised, the man will no longer be able to enjoy sexually and his right will be restricted. The solution to the conflict is discussed in this paper and the assumptions in which the right of enjoyment of the spouse takes precedence include four cases: the precedence of the condition; priority of the ruler verdict regarding the dowry payment by installments over the lien; the dowry being delayed; the assumption that the dowry payment should be made when possible, and the assumptions in which the lien of the wife takes precedence is in three cases: the assumption of the existence of conventional dowry and upon capability; delegation of dowry; tafwīḍ al-buḍ‘ (not determining the marriage portion in marriage contract) and disagreement over the dowry, have been investigated.

From the popular view among Imami jurists, as well as Shafi'i, Hanbali and Hanafi jurists, it is necessary to pay the full price in the forward sale session before the separation of the parties, and if the full price is not paid, the transaction will be void. However, in spite of the mentioned condition, the above condition is not fulfilled by the jurists in the type of transactions between the people; because the main reason for the prevalence of this type of transaction in the present age - which is referred to as pre-purchase or pre-sale - is the inability of the customer to pay the full price, and its dividing allows the customer to pay the full price. Now, the question is whether there is a justifiable reason for paying the full price in the contract session in terms of jurisprudence, and is it possible to answer the above challenge according to Imami jurisprudence and Maliki jurisprudence? This article, which has been written in a descriptive-analytical method with reference to Maliki jurisprudence, by drawing conclusions from various arguments stated by the jurists for the mentioned condition and reviewing each of them, concludes that the above condition is not correct and giving all the price in the contract assembly is not valid from the point of view of Imami and Maliki jurisprudence.

The use of civilian drones in the social aspects of human life is developing; to the extent that UAVs are expected to have a major role in smart cities. Despite the growth of UAV technology, the rules for using them are either not clear or have not yet been legislated. UAV civil liability is the most important area that, despite its benefits, poses social challenges and therefore needs research. Public and cyber security, privacy, personal injury, property damage and reputational damage are all types of responsibilities that can result from UAV performance. This article, written in a descriptive-analytical manner, while examining the conditions for the realization of civil liability, has proved the occurrence of losses in the field of UAV activities and based on the theory of respect, has considered the rule of civil liability applicable and due to the lack of personality for the UAV and also the category of artificial intelligence in the position of determining the person responsible for compensation, has been in search of a human factor.

Divorce is one of the ways to end marital life and the last solution to resolve disputes between couples. In narrative texts, divorce is mentioned as the worst halal. Although, according to the texts of the Qur'an and Sunnah and from the viewpoint of the majority of the jurists, the principle in divorce is to forbid it and not to make it happen and to encourage the continuation of the marriage, but the ruling on the occurrence of some divorces, such as divorce while drunk, the triple divorces with one word and divorce while on period from the perspective of some jurists, is contrary to this general principle. Examining the verses of the Qur'an about divorce, it seems that according to the context of the verses of the Qur'an, divorce, which is permissible in the Shari'a and intended by the Shari'a, needs to take place during the stages and under certain conditions. The meaning of the word marrah in the verse ﴾al-ṭalāq marratān﴿, and some narrations, indicate the above-mentioned issue. The result of this approach is that, contrary to the view of the majority of the jurists, many divorces are not fulfilled as they are not based on the stages and observance of their conditions.

Multiplex consensus is one of the reasons that is widely used in fiqh and usul-i fiqh. In this kind of consensus that is employed - after its definition - for negation of the opinions about a question, the argument is based on the existence of two or more viewpoints about the same question. Multiplex consensus, while being prevalent, none of its bases and rules have been properly discussed and its roots and evolutions have not yet been studied. This type of consensus that takes different forms like third viewpoint rejection and lack of dissociation viewpoint, in spite of its definition, is mostly used to generalize the rules and not to negate them. The topics of this discussion have been born and flourished in Sunni usul-i fiqh books particularly the books written in theologians’ tradition and from the fourth century onwards, it has been used in fiqh and usul-i fiqh. Shi’ites also have integrated this question with special Shi’ite viewpoint in usul-i fiqh books and used it in fiqh and usul-i fiqh arguments.

The use of water resources in Islamic jurisprudence has certain rules and regulations. The water right is one of the legal titles that has been discussed in the jurisprudence of tejārah (trade), ijārah (leasing) and iḥyā’ mawāt (reviving dead land). This article tries to examine the ways to transfer the water right property and the ways of establishing it in Islamic jurisprudence with a comparative approach. The water right is one of the financial rights that can be transferred implicitly or independently through payment or free of charge. The Common-pool resource is one of the guarantees of the water right, which is based on the fact that the public is equal in using it. The acquisition of water resources and transfer the water right property through the denotation that is known in Islamic jurisprudence as muāyāt, inheritance and will, are among other ways to transfer the water right property.

Zakat, second to prayer, is the most important obligation of Islam. At present, according to the nine conditions of obligatory zakat, the payment of zakat is practically disrupted. For example, the condition of the cash to be coin in common currency, the three types of cattle to be grazed in desert throughout the year and reaching the quorum and some other conditions in the four grains. It is clear that this perception is not compatible with the verses and traditions on zakat implying that by paying zakat, the root of poverty is removed. This article, which is carried out in the form of a library, while criticizing the arguments for the exclusive obligation of zakat in 9 examples and relying on 6 types of traditions, has reached the conclusion that zakat is obligatory on all the seeds grown out of the ground except for beans.

The rule of prevention of damage is derived from the system of common law, and according to it, a person who suffers from a violation of law or contract is obliged to take conventional measures to prevent the creation or spread of damage. This rule is based on the logical concept of "causation relationship". However, in Imami jurisprudence, various rules such as waste, glorification, principle of vizr (load of sin), principle of qurūr and action have been extracted from the concept of "causation relationship" proportionate to the different facets of the causation relationship, which, considering the involvement of the injured party in increasing his loss, the rule of action should be used as the jurisprudential basis to prevent damage. The necessity of adapting and applying the rule of preventing damage in the legal system of our country is limited to special cases in contractual liability. That is, only in the cases of receiving damages due to termination of the contract (Article 239 of Civil law) and fulfillment of the commitment by the obligee at the cost of the obligor (Article 222 of Civil law), it is possible to speak of the injured party dealing with the damage. In terms of non-contractual responsibility, although specifying the rule of preventing damage will bring more harmony in the judgments of the courts, but according to the basis of responsibility in Imami jurisprudence, which is the ability to attribute damage to the cause of damage, it does not accompany a new effect that the general rules of civil liability would lack.

One of the most important principles of Islam, which needs to be explained in Islamic penalties, is the "exclusivity of the Shari'a of easy and tolerant", which is taken from the Prophetic hadith: I was sent upon the easy and tolerant true Shari’a. The reference of jurists and theologians to this principle shows its high validity. So, this principle has been recognized as one of the factors of Islam distinguished from other religions in the devising primary rulings and also as a rule of negation of hardship in secondary rulings. The effect of this principle on the Islamic penal system, especially penal punishments, is to soften these punishments as compared to pre-Islamic era, and by applying a rule of negation of hardship and creating a facilitating moral principle, it prevents certain punishments from going beyond their goals and provides the context for the upgrade of criminal justice.

According to clause A of Article 290 of the Islamic Penal Code adopted in 1392 sh/ 2013, if a person intends to kill someone by doing something and the murder occurs in practice, the type of means or behavior committed has no role in the murder, and the murder is considered intentional and subject to retribution. The jurisprudential basis of this legal article is the well-known opinion of jurists. However, some other Imami jurists believe that if the means or behavior committed is not typically lethal, such a murder is not considered intentional and is quasi-intentional. The present article describes the above two views and mentions the relevant arguments and argues in a legal-discretionary (fiqhī-ijtahādī) procedure on the preference of the unpopular opinion. As a result, if the killer is intentional in his behavior and the murder takes place, such a murder would be considered intentional if the means or behavior committed is typically fatal, otherwise, the murder would be quasi-intentional, even if there is a tangible causal relationship between the perpetrator's behavior and the result achieved.

Inferred from jurisprudential and legal evidences, the basic principle in intentional crimes is retribution (qiṣāṣ), and deviation from this principle is not permissible, except in the absence of a member or the fear of loss and abuse. Therefore, the legislator's approach in Articles 576 to 586 of the Islamic Penal Code to oblige the offender to pay blood money (dīya) or indemnity (arsh) in intentional crimes on the hair is taken into consideration. This descriptive-analytical study evaluates the common views of jurists in this field and by preferring the view of jurists who believe in performing hair retribution, concludes that in view of recent medical advances in the field of skin and hair, it is possible to observe the similarity condition in hair retribution, So that hair transplantation operations with various methods and very precise tools that are performed today in specialized clinics, is evidence to this claim. Therefore, performing hair retribution is considered as a feasible option. In addition, in this case, the principle of proportionality of crime and punishment is observed and the rights of the victim are better provided. Accordingly, a revision of the mentioned materials is suggested.

Considering the extensive function of utilizing dogs in modern world, their trading is naturally highly prevalent. Therefore, it is necessary to investigate its religious decree. In general, there are seven theories in different Islamic schools on this issue. In this paper which is done in a descriptive-analytical way, after criticizing and investigating all theories it was concluded that even though in the narrative arguments just the permission of trading of watchdogs and gun dogs are mentioned, trading of all kinds of dogs that have wise use is permitted. It is through considering the point that at the time of stating these narrative arguments the wise benefits of dogs were the mentioned benefits and also to consider that in common perception there is no difference between different old and new benefits of dogs, so by ignoring the specifications the theory can be proven.