پژوهش نامه فقه اجتماعی
پیاپی 24 (بهار و تابستان 1403)

The analysis of contractual intent and the precise stages at which each contractual element manifests itself has long been a battleground of opinions among jurists and, consequently, legal scholars. Among these elements, the specificity of the subject matter of the transaction stands out as a cornerstone of contract law. This issue becomes particularly pertinent in the modern world, where individuals often enter into contracts in a somewhat general manner to accommodate social and commercial exigencies. The central question arises: how can the validity of such contracts be justified?According to the theory of the general Requirements of contracts, every contract, at the time of its formation, must possess the requisite of agreement. This agreement, based on formal logic, encompasses the concept of offer and acceptance, along with the subject matter of the transaction, all occurring simultaneously. This logical understanding is further supported by commercial needs, the principle of the stability of transactions, and the economic conditions of society.Therefore, if an agreement can be ascertained in a reliable manner within the context of a contract, the validity and continued existence of the contract should be upheld, preventing its dissolution. In this article, the authors first delve into a thorough examination of the condition of specificity of the subject matter of the transaction (Section I). Subsequently, they explore the feasibility of applying the theory of the general requisite of contracts to the identification of the subject matter (Section II), employing a descriptive-analytical approach.

The theory of the right to obey is one of the innovative theories of the thinker Martyr Sadr (may Allah have mercy on him), which was designed and presented against the famous Usuli theory based on the ugliness of the eagle of the eagle of the eagle. The rule of the ugliness of the eagle of the eagle of the eagle is based on the central point that the duty does not require incitement and the creation of the Ba'ath until it is definitely or scientifically communicated to the one who is obligated, and the eagle on inaction where there is no need for incitement will be ugly according to the rule of reason. By raising the issue that the scope of fulfillment depends on the maulavit and the right to obey, Martyr Sadr (may Allah have mercy on him) believes that maulavit is a dubious fact and that no matter how strong the maulavit of the master is, the circle of fulfillment also expands. The famous error of the Usuli is that in maulavit, they have equated the conventional master with the true master and just as in conventional masters the possible fulfillment of the duty is not possible, in true masters they have also raised the possibility of the non-fulfillment of the possible fulfillment of the duties. The essence and essence of the opinion of Martyr Sadr (may God have mercy on him) is the existence of the requirement of initiation and incitement in the revealed duties, possibly in the true master. This theory has been criticized by some as internal inconsistency. The critic claims that in the possibility of the master's obligatory duty, there is also the possibility of release and permission, and the right to obey the master, just as it requires the observance of maulavit in obligatory rulings, it also requires the observance of maulavit in dispensational rulings, and in the event of conflict between the aspects of obligation and release, there is no aspect that gives preference to one side over the other. Therefore, the theory of Martyr Sadr (may God have mercy on him) is plagued by internal inconsistency. This article has attempted to clarify the absence of these problems in the theory. The claim of Martyr Sadr (may God have mercy on him) is that there is a necessity for incitement in the possible duties of the true master, and the critic considers the theory incomplete because the right to obedience in the area of ​​obligatory duties is hindered and interfered with by the duties of release, rather than criticizing the principle of the claim, which is the necessity for the resurrection. This is the main error of the criticism; although it also faces problems in other areas, which have also been addressed.

Identifying the right from concepts such as freedom, permissibility, to be allowed and discretion is important due to the difficulties caused by mixing these two and misinterpretations. One of the common fallacies is the fallacy of real and figurative, which is due to the legislator's use of "common words" or the way of expressing legal propositions. , has happened and caused some cases such as the right to divorce, recourse in divorce or recourse to Awad, in the opinion of some, to be abortive. Therefore, it is necessary to define conceptual boundaries with appropriate methods (research problem). By relying on the classification of the core of authority and surveying the criteria of jurists (research method), it is known that by relying on the nature of the credit relationship of the right and paying attention to the difference in the "limit of authority" and the "degree of dominance of persons", the difference in the "limitation limit" and the achievement of "dominion over Supremacy" or "authority over authority" which is specific to the term right, achieved a correct diagnosis. In the true concept of the right, revocability is the definitive factor of differentiation with similar concepts, and paying attention to field factors such as the right being the right, the existence of the obligor, the existence of context and reason, the existence of the intention of revocation and its expression, the possibility of delimitation, obligation, demandability, and decomposability, conceptual dimensions and Explained the example of right and wrong (research results).

One of the economic and social problems of the country is housing supply. One of the main pillars of housing supply is land supply. On the other hand, it seems that there are necessary lands for the construction of housing in the country. What is important is the management of the government in this regard. The main problem of this research is to explain the role of the government in providing urban land for housing. Since this issue is a normative issue, the authors believe that it is jurisprudence that has the authority to deal with this issue. Therefore, in this research, it has been tried to collect the necessary information about the subject with the library method and analyze this information with the method of ijtihad and jurisprudence. According to the analysis of this information, it is obtained that the ownership of the available land that can be used for housing construction belongs to the government, which the government can provide to the people who can build housing on this land and in return receive tribute from them. Also, although the government can, in cases where the public interest requires, transfer the land it owns to the ownership of others, but under the pretext of providing the necessary infrastructure for providing housing, acquiring land to the rich, which causes the accumulation of their wealth, and the possibility of land hoarding and It increases housing, it is not allowed, so the government is obliged to do this in other ways.

Safahi contracts which are usually described as eligible persons’ financially irrational contracts, are an unusual form of every financial contract. In these contracts being financially irrational meets being made by eligible persons. The silence of the Iranian Legislature on legal situation of these contracts and Imami Jurisprudents’ disagreement about it, have made Iranian legal system face a complication in making an appropriate decision on it. This basic research investigates the two existing opinions on the subject, Absolute Invalidity and Absolute Validity, refutes some of their evidences and proves the others. This research with its descriptive- analytic method discovers the two opinions incapable of solving the problem because of their absolutistic approach to the custom and states a new opinion called the Relativity of Safahi Contracts’ Legal Situation. This opinion disagrees with considering the legal situation of safahi contracts absolute and considers the eligible society able to make prevalent safahi contracts valid and the others invalid.

One of the types of basic rights of citizens that have been prepared in international documents and recognized according to different political systems is "the right to choose the place of residence"; which the constitutional legislator of the Islamic Republic of Iran has also stated in Article 33. Considering that it is appropriate that this establishment of the legislature is compatible with Islamic texts, the main question of interest is "What is the status of the freedom of Article 33 in terms of the foundations and evidence of legitimacy in Islamic texts and, if necessary, what is the need for reform when the Constitution is revised?" Is?" In order to answer this question by referring to the Qur'an and narrations and with a descriptive and analytical approach, the conclusion was reached that this right is mentioned in the verses of the obligation to use the right to choose one's place of residence - verses 56 of Surah Ankabut and 97 of Surah Nisa - and verses of recommendation Jihad against those who limit the freedom of the original stance - verses 39 and 40 of the blessed Surah Hajj - and also in the words of the Holy Prophet (PBUH) and Commander of the Faithful (PBUH) have been emphasized. While examining the Qur'anic and narrative bases, it was concluded that the expression of freedom to choose the place of residence is a comprehensive title that includes other definitions used in the original and there...

One of the reasons for invalidation of the contract of sale and other exchanges is "uncertainty or ambiguity = gharar". Gharar means that the ambiguity in the pillars of the contract causes one of the parties to not be safe from incurring significant losses. But how this rule affects the marriage contract, which is not considered a real exchange, is one of the challenging issues. Especially if there is ambiguity in "marriage parties" or "their qualities". For example, at the time of marriage, it is unknown who the wife is. Or the age of the couple is ambiguous, and without customary determination, a young woman marries an old man. In this case, what is the ruling of such contracts in terms of its ambiguity? This article tries to determine the validity and invalidity of such a contract with the analytical and library method, and based on jurisprudential evidence and fatwas of jurists.A problem that according to the research has not been researched before. Based on the findings of this research, the rule of negation of Gharar is also valid in the marriage contract; So that if the "parties of the marriage" are unclear at the time of marriage, the marriage is invalid. However, if their attributes are ambiguous, wise people often recognize the attribute independently of the essence, that the main intention of each party belongs to the essence of the other party, therefore, it has led to the validity of the contract.

The process of exchanging human body parts and preserving the respectable soul has been the focus of Jafari jurisprudence for a long time. What is evident from the opinions of the jurists around this issue is the popularity of the banning of the buying and selling process and any type of ownership contract for the exchange of other parts of the human body, regardless of motivation. In the upcoming research, by expressing the opinions of Islamic schools of jurisprudence and mentioning the reasons and evidences of these rulings, a detailed criticism of the ban on the process of exchanging and transferring human body parts has been discussed, and by using the sources of issuing jurisprudence, the causes of the ruling on the permissibility of the process Transplantation of human body parts is provided. Because by violating the evidence of banning the said process and using the positive evidence of the ruling on the permission of the process of exchange and transfer of human body parts, there will be no other way but to accept the ruling on the permission in the said process. It is hoped that this jurisprudential research will save many lives from certain death and become an example of the 32nd verse of Ma'ida "And those who live will not live all the people".

A vaccine is a biological product that, by stimulating the body's immune system, identifies and destroys the infectious agent or related microorganisms in the future. Also, general vaccination has been effective in controlling many widespread diseases, including smallpox, polio, measles and tetanus, and therefore it has been emphasized by medical knowledge.This article, which talks about the consequences of vaccination, seeks to answer the question: "Who bears the civil and criminal responsibility for the possible and unknown side effects of the vaccine or the injection of a low-quality vaccine, as well as the lack of vaccination and the spread of the disease?"The upcoming research, which was carried out with the descriptive and analytical data processing method, and by collecting information and data from library sources, has concluded: First, in the assumption of the negligence of government employees or expediency in providing the second grade approved vaccine, civil liability, compensation and payment Diy and Arash are towards them; Secondly, assuming the fault of government employees, in addition to civil liability, criminal liability will also be added. Thirdly: In the case of the citizen's refusal to inject the vaccine and his illness, the responsibility of the government is excluded.

The legislative framework, as outlined in Article 177 of the Islamic Penal Code, prescribes specific requisites for a valid religious testimony, eliciting scrutiny and debate within scholarly circles. Given the pivotal role of testimony in adjudication and the preservation of rights, it becomes imperative to engage in rigorous inquiry aimed at validating these stipulated conditions within the legal context. Instances where an individual meets the criteria for testimony in substance, yet their testimony is disregarded due to a lack of conformity with statutory conditions, not only contravenes principles of equity but also jeopardizes the integrity of justice. Consequently, scholars have undertaken a meticulous examination of each restrictive condition of testimony in this discourse, employing a methodological approach characterized by descriptive analysis and drawing insights from jurisprudential, legal, and sociological scholarship.Research findings underscore that while certain conditions, such as the absence of vested interest and enmity, enjoy consensus among scholars and resonate with the foundational principles of Islamic jurisprudence, others, notably non-engagement in begging and non-transience, engender substantive scholarly contention. This discord arises partly due to the evolving social stratification, epitomized by the emergence of marginalized groups labeled as "suspect individuals," encompassing both itinerants and beggars. It can be argued that the testimony of individuals falling within this category, who do not neatly conform to conventional classifications of beggars or itinerants, warrants admissibility. Thus, there emerges a compelling exigency for a reevaluation of testimony conditions, particularly those pertaining to non-transience and non-engagement in begging, by legislative bodies.

Trading is one of the essential things of human life and a person has to trade to meet his needs . Now , if a person engages in a transaction with the intention of haram or enters into a transaction that does not have benefits other than the haram benefit , the ruling on the permission or consent of the Shariah is doubtful . Such as buying and selling pork or wine making machines , renting housing for haram purposes, means of self - gratification and even buying and selling cigarettes from the point of view of those who believe that it is haram . In the present research, in addition to expressing the sayings and examining the differences of jurists on the issue, in a special way , we will seek to extract the opinions of Imam Khomeini (RA) in the book Makasib Mohrramah and examine its evidences .

For him, the interaction of "theology", "people" and "government" should be observed in the system of religious democracy. In this model, the contribution of each of the constructive components such as "republic" and "religion" in shaping the government is the same. The main issue is: What is the constructive element in establishing interactive relationships between theology, people and government? And how can we establish structural and political solidarity between "religion" and "people"? Therefore, it can be said: the presence of religion gives legitimacy and the presence of the president gives acceptance. Religion, through its representatives, comments on the structure and context of government practices, which is based on definitive intellectual and narrative evidence in the age of absence. This research, which is based on the qualitative research method and development approach, shows that: in order to establish or sustain and optimally extend the government and order to the human society, the mujtahid of the manager should have the power to derive rulings. Shariah and Ijtihad understanding of religion, intellectual training and ijtihad, having zakat, intelligence, wisdom, administrative power, analytical power, having general social knowledge, including politics, management, anthropology, etc.