نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و پنجم شماره 2 (پاییز و زمستان 1401)

In lease contracts where the landlord grants the tenant the right to build construction or planting trees, article 504 of the Civil Code provides for the right to retain the accessions after the expiration of the lease, following one of the two main jurisprudential views. But it leaves unanswered the question of whether or not the tenant will have priority in re-leasing by owning the accessions. Jurisprudential and legal doctrines have also sufficed to examine the right of retention of accessions. However, the tenant’s priority in re-leasing the area can be considered as an implicit customary condition, as the judicial and administrative procedure has a serious tendency to recognize this right. Moreover, the priority in renting due to the ownership of the standing property also has a legal background.

In case of exercising the pre-emption right, the connected interests are awarded to the exerciser of pre-emption right and the separable benefits to the customer. However, the issue becomes difficult if the customer has created an added value in the property owned by pre-emption right by spending money and without trespassing, such as planting a tree on the land or constructing a building, because, on the one hand, the customer has taken possession of the property during his ownership, and on the other hand, the exerciser of pre-emption right is eligible to take the property without these possessions. Article 819 of the Islamic Civil Code states the solution in giving the customer the right to remove trees and buildings. It is obvious that removing the building requires destruction and the tree cannot be moved in most cases. Therefore, removing these possessions means destroying them and causing a lot of damage to the customer. But the legislator is silent on this issue. Imamiyah jurists have tried to solve the problem by referring to issues such as the necessity of unstable ownership, the rule of prohibition of detriment, the rule of respect for Muslim property, the rule of sovereignty, etc. The many differences of opinion among jurists and the existence of legal gaps in this case clarifies the necessity of research in this field. In this paper, while expressing and criticizing the existing opinions in this field, it is concluded that if the customer’s possessions are carried out in compliance with all legal requirements, the pre-emption right is forfeited. However, if the customer possession is not protected by the law, the pre-emption right is fixed, and the exerciser of pre-emption right can forfeit the customer possession without being responsible for its loss of value.

Following advanced legal systems and with the aim of facilitating and expanding economic and trade partnerships in the form of a legal article, the Iranian legislature has proposed the establishment of a new institution called the Economic Group with common interests, based on the members’ contract, despite the short volume of the approved agreement, and at the same time the legislative emphasis on forming a group in the form of a civil company, including the lack of independent legal personality of the group and the group’s ability to enjoy residence, property, citizenship, and other benefits. In a company contract, the civil company only regulates the management of the common property and has no regulations governing the coinage, administration, organization of activities, and dissolution of the civil company. Furthermore, the numerous examples of silence and conflict between the approved regulations and certain legal foundations have caused its inefficiency and, consequently, the lack of reception by traders in using this newly established legal format.

Discussions on juridical persons can be seen in the works of jurists and legal scholars; however, topics such as khīyārāt (right to withdraw from contracts) haven’t been paid as much attention to, particularly khīyār al-majlis (the option of withdrawing from the contract while the two parties are still at the place of transaction) which we haven’t found any previous research on. This article analyzes the right to khīyār al-majlis for the juridical person and its agent from two angles. First, whether the textual evidence establishing this right extends to and encompasses juridical persons. Secondly, whether the condition of not leaving the place of transaction can impede a juridical person obtaining this right. Examining this issue required extensive research via a library research method, by collecting and evaluating jurisprudential & uṣūlī propositions & judgements. We conclude that such a right is established, and the condition of being at the place of contract cannot impede this right.

There are few chapters in narrative sources that do not have at least one case of conflicting hadiths. Therefore, solving the conflict of hadiths has always been the concern of jurists, and efforts have been made for the purpose of conventional combination and preference among hadiths. In the meantime, the role of the narrator’s question in the collection of hadiths and implementation of preferences has been neglected.This article tries to address the narrator’s question in the context of solving the conflict of hadiths by using the descriptive-analytical method. Narrator’s question is a sign of the narrator’s diligence in narrating the hadith and the evidences related to it, and it has the authority to resolve the conflicts caused by the illusion of unity of the subject. The narrator’s question is an uninterrupted indication to the specificity of one hadith over another and the closeness of the content of one hadith to another, and is among the important sources of extracting the narrator’s understanding, the narrator’s conjectures, thoughts and illusions and the sīras existing in the era of the Infallibles and other effective evidences in drawing inferences of the legal injunction.

The most important reason for the authoritativeness of the apparent meaning of words and phrases of the verbal sources is the intellectuals’ stipulation [basis]. The question is: can this stipulation have an impact on the semantic shifting of words and phrases? If the answer is affirmative, how would it have such an impact? The intellectuals’ stipulation, sometimes as a rational indication, associated with the words and phrases, has an impact on the semantic extension or semantic limitation, and sometimes it has an impact on the construction of premises on the stipulation of which a general meaning for the words and phrases is established. In addition, the distinction between the custom and the intellectuals’ stipulation at the time when the verbal sources are issued and the time when the said sources is used is necessary. By giving some examples of the law of contract, this article introduces this impact of the intellectuals’ basis. In addition, the possible objections to the authoritativeness of this use of the intellectuals’ basis have been raised and answered.

Although, Islamic jurisprudence scholars agree on the permissibility of divorce in Islam, they adopt different views on what type of Islamic ruling it should be assigned. A close analysis of the scholars’ stances reveals that their lack of consensus on this issue is mostly based on the popular hadith of “ابغض الحلال…” and other related hadiths. These hadiths mostly have issues with their chain of narrators. Moreover, they are paradoxical in nature due to considering divorce both ḥalāl and at the same time a much-hated act. Such a paradox defies logic. Still another point that defies logic and wisdom is to consider the same type of Islamic ruling for a divorce based on whims and a divorce which is well-justified in Islam. Needless to say that the first one lacks any Islamic justification. The present study, which adopts a descriptive-analytical approach, first scrutinizes the narrations related to divorce from both content and their chain of narrators’ points of view, and then concludes that in different situations, different types of Islamic rulings should be considered for divorce and it is too simplistic to consider it as makrũḥ or mubāḥ in all cases without taking their situational conditions into account.

Seemingly carriage contract in commerce law is a contract including suspension in initiative. This does not mean that contract between consignor and carrier is a contract suspended in initiative but seemingly this contract contains a pledge in favor and a task in detriment of third person i.e. consignee and conclusion of this pledge and task as a contract depends on his acceptance. This acceptance does not affix that pledge or task on conclusion of contract between consignor and carrier but can affix after sending bill of lading or receipt to him or after cargo arrival in destination with demand from the consignee or with notice to him to refer for receipt of cargo. With availability of suspension’s subject and acceptance of pledge and task, the relationship between carrier and consignee concludes. Suspension in initiative can be seen as well in agreement for decrease or increase of damages from full price of cargo. As at the time of that agreement damages are not yet sustained, its conclusion at the moment of carriage contract’s conclusion faces difficulty. In this connection, it can be said that as cause of damage has been created by the carriage contract, so agreement about it is possible. However, this argument is skeptical whereas seemingly resort to suspension in initiative is a better solution to this problem. The present research analysis besides proving the accuracy of its theories, leads to unveiling of various new instances of precise rulings about suspension in initiative.

The legitimacy of initial jihad (jahād-i ibtidā’ī) in the texts of Islamic scholars is one of the propositions that has provided the ground for “women enslavement” by Takfīrī groups. The international community has reacted against such conduct by criminalizing it. Nevertheless, the existing jurisprudential opinions regarding the legitimacy of women enslavement and initial jihad have provided the way for justifying the activities of Islamist terrorist groups. This study attempts to prove the prohibition (ḥurmat) of women enslavement with a critical view of such gender-stereotype view by benefiting from some components such as dignity, international custom, preliminary abrogation, and historicity. As a consequence of this study, considering women as booty is an obsolete opinion in the contemporary era with no status among shari’a and human wisdom; thus, by transition through historical writings in this respect, one should think of the transition through such an approach and stepping into a realm of equality between man and woman.

Despite the fact that the jurists consider themselves bound to follow the traditions of the Imams (A.S.), sometimes they do not follow the content of some sound and complete traditions, which is interpreted as “avoidance of the renowned from tradition”. Sometimes avoidance happens in field of sanad (chain of transmission) and sometimes in field of indication (dilālat). Most of the uṣūlīs believe that the avoidance of the renowned causes weakness of narration, but in contrast, some believe that avoidance of the renowned does not have any effect on weakness of narration. In this research, the status of avoidance of the renowned is studied in field of sanad as well as in field of indication, and also the evidences of both views for and against avoidance of the renowned have been examined and analyzed.The findings of the research indicate that it is not correct to attribute the issue of avoidance to practical reputation; rather, it is more correct to say that this discussion is related to the reputation of a fatwa, and since a form of fatwa reputation can also be opposed to a tradition, the subject of avoidance is dedicated to this type of reputation. Also, prioritizing the narrator’s invalidation to his validation, exposition of not acting on a narration as avoidance, as well as departing from the title of being a reliable source, are considered the main arguments of those who support the weakness of tradition due to avoidance of the renowned.

Congregation prayer is a ritual bringing humans closer to God. However, it also has a social aspect, breeding empowerment and unity among Muslims. One pillar of congregational prayer is an Imam who leads the prayers. The Holy Legislator has specified some conditions for the Imam. One such requirement agreed upon by most latter Islamic Jurisprudents is the condition of justice. The findings indicate that the renowned majority of the latter Islamic jurisprudents regard the requirement of justice for the congregation Imam as immutable. However, their arguments fail to establish this claim. Due to the alleged consensus, the Islamic jurisprudents have paid scant attention to this subject. Instead, they merely cite the purported consensus and mention the relevant narratives from the Islamic tradition. Nevertheless, a comprehensive critique of the relevant arguments and proving this hypothesis would at least alleviate some religious people’s obsession with meeting these conditions, helping congregation prayer further flourish.

The term "civil disobedience" refers to an action that violates the law in a legitimate government and is a loud cry of protest raised by citizens who believe the rulers' decision is incorrect. This research is intended to examine the jurisprudence regarding civil disobedience in a legitimate government. This qualitative study utilized the library method and relied on valid jurisprudential analyses in Shi’a jurisprudence. It is the author's belief that, firstly, there is a substantive difference between "civil disobedience" and other jurisprudential concepts; and, secondly, on the basis of the jurisprudential evidence, the "primary verdict" of civil disobedience is "permission". Thirdly, the first sentence of civil disobedience can be changed to "unauthorized" by raising subtopics such as "disturbance of the system." And fourthly, according to the generalities of "liability", the victim should be considered responsible for damage caused by civil disobedience.