نشریه آموزه های فقه مدنی
پیاپی 27 (بهار و تابستان 1402)

The way to manage waqf (Arabic: وقف, endowment) is one of the main issues in the endowment contract. The responsibility of the management of the endowed property rests with the administrator (Arabic: متولی) according to the opinion of jurists and also the civil law. The administrator is usually appointed by the founder (Arabic: واقف, Wāqif) during the endowment. Now, the question arises who will be the administrator, if the founder has not appointed the administrator? Article 81 of the amendment of the Civil Code has identified the custodian as the ruler in public endowments, which does not have a specific custodian. According to Clause 1 of Article 1 of the Law on Institutions and Powers of the Organization of Hajj and Endowments and Charitable Activities (Affairs), approved on December 23, 1984, the administration of general endowments that do not have an administrator or have unknown administrators and if the expedient of the endowment and the next generation or resolving the dispute of beneficiaries of an endowment (Arabic: موقوف علیهم) are subjected to the intervention of the guardian of the Islamic jurist in private endowment (endowment for the benefit of certain individuals) will be delegated to this organization from the date of approval of this law. However, the opinions of jurists differ where the founder does not appoint an administrator in the endowment. Some believe that the administration (trusteeship) is with the beneficiaries of an endowment in both types of endowments. A group considers the administration as the ruler in every kind of it. Some believe that the administrator in the general endowment is the ruler and the beneficiaries of an endowment bear the mentioned responsibility in the private endowment. It was concluded, by analytical-descriptive method and using the library method, in this study that the administrator of the endowed property is the ruler in cases where the founder does not specify the administrator in the endowment, and there is no difference between the general endowment and the private endowment in this regard.

The nature and manner of discovering (or constructivism of) social institutions and their relationship with human wills are important issues in humanities studies and the main question of this research is the question of the nature of “ʿaqd (Arabic: عقد, contract)” as a social institution and the relation of the will of the parties with this institution. There have been various theories and approaches about the nature of the institution of ʿaqd throughout the history of Western law and the Islamic tradition of Jaʿfarī jurists. The review of theories shows that jurists have defined the marriage in several forms and these definitions have historical course and have undergone changes. Some have defined ʿaqd as “verbal (oral, unwritten) issue” and others have defined it as “originating” (Arabic: إنشاء, concluding) and others have defined it as “copula” (connection). The hypothesis of this research is that in all these definitions, a basic issue has been ignored, and it is the lack of distinction between the concept of “ʿaqd” and “ʿaqd conclusion”, and in these definitions, ʿaqd has not been considered as a social institution. In other words, ʿaqd in two senses can be our meaning, firstly as a social nature and institution which is derived from the will of Allah as the law-giver (religious legislator) in Jaʿfarī jurisprudence and its nature is discovered by the jurist, and secondly, as a practical agreement between two human wills to join the existing religious framework beforehand. We try for this purpose to investigate the texts of jurists and lawyers more seriously by inferential, interpretive and argumentative methods.

There are disagreements between jurists and lawyers regarding the minimum and maximum duration of temporary marriage (Nikah mut'ah, Arabic: نکاح المتعه, Romanized: nikāḥ al-mutʿah, literally temporary marriage or Sigheh, Persian: صیغه، ازدواج موقت). There is no stipulation in the civil law that specifies the duration range of this legal institution. Accordingly, we are going to explain different opinions in this article and choose a view that is based on the rules of civil jurisprudence and legal principles. This research has been collected in a library method. The results show that the minimum duration in temporary marriage is long enough to allow sexual satisfaction and enjoyment. The maximum duration should not be more than the life of the couple or one of them. It can be finally said based on the interpretation of the will of the parties according to their custom and their obligation to observe customary affairs that a marriage which has been concluded for a long time is a permanent marriage (Arabic: النکاح الدائم, Romanized: nikāh ad-Dā'im) all the effects of permanent marriage such as divorce, inheritance, iddah (Arabic: العده, Romanized: al-ʿidda; “period of waiting”), right of sexual intercourse (Arabic: حق القسم, Romanized: qasm, the right to sleep together, and the right to sleep at night during marriage in Islam) and alimony are considered.

There are disagreements about the issue of the “liability of human lost interests” in Imamiyyah jurisprudence, despite the consensus of the majority of jurists on the principle of the necessity of compensating for unjust losses and its reasonableness, which can be rooted in the difference between the approach of jurists in the jurisprudential principles of “liability”. Therefore, one of the remarkable jurisprudential proofs (evidence) of the necessity of compensation (liability) is the rule of “prohibition of detriment (Arabic: لا ضرر, principle of harm)”, which has been accepted by a number of jurists, especially a group of Imami jurists. The question of this research is whether it is possible to consider “the necessity of compensating for the loss caused by the lost interests of human” within the rule of the “prohibition of detriment” and the jurisprudential views about it? There are two different jurisprudential views in this regard based on the findings of this study, which have been accomplished in descriptive-analytical method and by referring to reliable sources of jurisprudence. The authors, by defending the view of expanding the rule of “prohibition of detriment” and the evidence of reason, has proved the jurisprudential view that believes in the “liability of human lost interests”.

The country’s lands in a large (major) land division are divided into two parts, national lands and excluded lands, which in the implementation of the law of nationalization, sometimes the excluded lands are detected as national lands and then delegated (disposed) to third parties for exploitation to create service, industrial and agricultural projects. It is obvious that the detection of national lands like other human activities is a process mixed with human error and in fact, the main question of this research is who is liable for compensating the losses of the executors of the delegated (disposal) projects, which occurs due to errors and mistakes in the nationalization of the excluded lands? Is the government liable with the general description of the state, or are the agents of the state, i.e., the executive agencies, such as the verifying authority or the delegating authority liable, or are the government’s agents, i.e., relevant natural persons in the national lands detection process such as the distinguisher or forester, liable for compensation or not a particular person is not liable? This article first studies the process of verifying national lands and then investigates wrongful delegation, the liability of the relevant authorities to compensate for the damages, and also, studies the liability for the compensation caused by fault in detecting national lands from the perspective of civil law and special legislation. The result of this research, which is written in an analytical-descriptive method, is that basically, the government or government entities, i.e., the verifying authority and the delegating authority for not having personal and administrative fault and that the detection and delegation of national lands are sovereign acts (jobs), are not liable for compensating the losses of the executor of the delegated project and the transfer authority is only obliged to restitute the price or rent, and the government is not liable for compensations such as devaluation of money and investment costs. Finally, some solutions have been proposed to prevent the consequences of the delegation of excluded lands.

Islamic jurisprudence is not indifferent to children without guardians or bad parenting children (children without adequate parental care) and has placed their affairs as a collective duty (an act which is rested on Muslims till it is done by some of them alternatively) to the direct affinity of children, judge and Muslims, and has prevented the expansion of the rulings on the natural relationship between parents and adopted children, and its challenges have not been ineffective in the relevant laws in Islamic countries. It is important to notice what is the way out of this problem in Islamic jurisprudence? This article has been compiled using library studies and descriptive-analytical method and has studied this challenge while criticizing Iran’s statute laws by adhering to the jurisprudential Rule of Expediency and expressed the solutions. The findings of this article based on Quranic and narrative principles, conditional and limited adoption in Islamic jurisprudence using the element of expediency as the basis of Sharia rulings and the philosophy of the enactment of rules are in all decisions that his/her guardians, whether judge or godfather make and preserving the child’s true lineage, the necessity of alimony and custody in order to preserve his life and preserve the child’s financial rights (inheritance) and observe the religious blood relations within the prohibited degrees of marriage in the family are also emphasized and the decision is subject to the observance of expediency with the aim of the growth and excellence of bad parenting children in addition to children without guardians in many cases.

It is difficult to discern the religious and legal duty to save the lives of those trapped or to save the lives of rescuers in dangerous situations that seriously threaten the life or physical health of the rescuers. This research has reviewed the reasons and jurisprudential documents in a descriptive-analytical method and concluded different rulings by rereading the evidence of venturous search and rescue in different situations. Rescue and treatment in the case of equality of lives are not obligatory, because both of the lives must be saved. It is not obligatory, according to the necessity of the Ḥadīth (“News” or “Story”) of “prohibition of detriment (Arabic: لا ضرر, Ḥadīth of harm)” and the generalization of harmful worships and food to the situation of physical harm, on the savior to suffer the harm in the absence of protective equipment for the purpose of treating and repel the harm from others. However, according to the absoluteness of the proofs of search and rescue, preference (Arabic: رججان, Rujḥān) and recommendation (Arabic: استحباب, Istiḥbāb) were proved in these conditions. It is rejected to refer to the Ḥadīth of “No Infectiousness (Arabic: لا عدوی)” in denying the contagion of disease and staying in the environment of the outbreak of the contagious disease. However, the rescuers in the field of medicine and nursing, in addition to having knowledge, expertise and equipment, according to the commitment, should provide treatment as much as possible as secondary necessity. However, it is not possible to sentence to the liability of a leaver of rescue in case of failing (abandoning) to rescue in these circumstances, although the leaver has committed a sin.

Sexual offences have several jurisprudential effects and imperative rulings, which have been studied limitedly in jurisprudential researches, such as the permanent prohibition of marriage (Arabic: نکاح, Romanized: nikāḥ, literally marriage, Persian: ازدواج) in adultery with a married woman (Arabic: ذات البعل) and also, the permanent prohibition of marriage in adultery with a woman in her period of waiting (al-ʿidda), but other effects have not been studied. The jurisprudential ruling of the marriage of the son or father of an adulterer with an adulteress is the main issue of this research from the point of view of five Islamic Denominations (Arabic: مذاهب الخمسه, Shīʿa, Shafi'I, Ḥanbalī, Ḥanafiyah and Mālikī Schools). It is necessary to express and analyze this issue in order to obtain the rulings (aḥkām, Arabic: احکام, plural of ḥukm, Arabic: حکم) and its related effects, and it is obvious that failure to present such research will cause problems in the explanation of criminal jurisprudence rulings. Therefore, authors by collecting information through library method and with descriptive and analytical perspectives have examined the issue from the point of view of five Islamic Denominations in this research. It was finally concluded that such a marriage is forbidden in Shīʿa jurisprudence, but there are differences in Sunni jurisprudence that the proofs (evidence) of prohibition is strengthened by rejecting the proofs of the permissibility of marriage, and the Shīʿa’s view is proved.

All EU member states are required to have maximum protection over personal data by ratifying the EU General Data Protection Regulation (GDPR). Data processors in order to fully realize these protections are required to comply with various obligations according to these regulations. These obligations are expressed in various GDPR articles for the purpose of effective protection of personal data and data subject persons. It became clear by explaining these obligations from the point of view of European regulations relating to personal data that the Iranian Legal System did not stipulate such obligations and that only the generalities of these obligations can be inferred from various sources of Iranian law, such as the statute laws, the fundamentals of Iranian law, and Jaʿfarī Jurisprudence. It should be noted that these implied significations are insufficient to accurately explain the various obligations of data processors and the transparency of the details of this matter needs to be clarified by the legislator. This research in this regard has provided the proposed provisions regarding various obligations of data processors, including the controller’s liability towards the processing process, the controller’s commitment towards choosing the appropriate processor, keeping records of processing activities, cooperating with supervisory authorities, ensuring the security of processing, informing and servicing the breach of personal data to supervisory authorities and the data subject (relevant persons of data), and appointing data protection officers (DPOs).

A contract in the conventional banking is signed between the bank and the customer in the form of a loan contract and a certain interest is paid in accordance with the contractual agreement. The use of partnership and non-partnership contracts according to the religious prohibition of receiving profits in the contract of debt in banking operations without usury to receive profits has been studied by many experts and Law for Usury (law on banking operations without usury) has been prepared, approved and implemented accordingly. However, the use of these contracts has caused the complexity, cost and formalization of the contracts and led them to be corporatism. Providing a solution to solve this problem by using the current opinions about the money liability theory (monetary theory) is the purpose of this article. In addition to the devaluation of money, loss of benefits and delayed payment fine (late payment fine) have also been studied in the light of this theory and due to the nature of money in the modern economy in the form of contractual agreements and condition as an integral part of contract (proviso) in the contract. The use of contractual agreements according to the opinions presented about the theory of money liability in banking contracts can be helpful in resolving this problem.

The compatibility with the requirements of the contract, according to clause 1 of Article 233 of the Civil Code, is one of the special conditions of the correctness (validity) of the condition. However, it is silent about the basis of the nullity of the repugnant condition and it is also, silent about what the criterion is in determining and distinguishing the requirements of the substance from the absoluteness. Therefore, the mentioned ruling (judgment) is not comprehensive and clear and is insufficient. This shortcoming and obscurity have caused a difference of opinion among civil rights authors. First of all, the authors by descriptive-analytical method enumerate and explain the theoretical foundations of the aforementioned ruling, including rational proof and narrative proof in jurisprudential works, and then, selects the theory of the elements of contracts among the interpretations available in the criterion of distinguishing the necessity of the substance (essence, nature) from the application. Therefore, any condition which is contrary to one of the general or specific elements of the contract, because of the contradiction within that condition in relation to that contract, is an obstacle to the realization of the contract and against the requirements of the nature of the contract.