مجله مطالعات فقه و حقوق اسلامی
پیاپی 3 (زمستان 1389)

In Sonni jurisprudence and most of Shiite jurisprudential experts، have not confined the subject-matter of agency to making contracts and unilateral acts (Ighaa). Rather، their legal opinion is that any person may delegate it to another party in order to do any delegatable act. The application of absolute word of «affaire» as agency matter in section 656 of code civil، particularly in taking consideration of jurisprudential sources and records، other sections of civil code and purport of other prevailing laws، show the admittance of this view in Iranian law. In French law، despite that the code civil is not explicit in this matter، deliberation in sections relating to agency in the code as well as the clear viewpoint of legal jurisprudence and jurist ُs opinions، confirm the allocation of agency to making juristic acts.

Under the Islamic (Shiite) institution of Taghas، in case the creditor/owner could not prove his claim before the judge or enforce his rights through the court، in this case، any person who is aware of the credit can enforce the right. This institution which is definable under the framework of objective Unilateral Act، causes temporary ownership for the performer of Taghas in relation to the received right.

Mesyar marriage and friend marriage are among the modern marriages introduced in recent years. Jurisprudents and thinkers have different opinions regarding the correctness and legitimacy of these marriages. In mesyar marriage the wife ignores alimony، sexual partnership and the right to live with a man while he has not much authority over her. This kind of marriage is spreading fast in Arabic countries of Persian Gulf and Afghanistan and there are some internet sites propagating it. Friend marriage is practiced to legitimize the relation of two friends (opposite sex). In this kind of marriage the wife stays in her father’s house. The present paper first introduces the modern marriages، then discusses the reasons behind their emergence and finally their legitimacy، advantages and deficiencies are analyzed.

Tthyr of money or laundering refers to a set of operations that makes the illegitimate and illegal property appear to be legitimate and legal. This phenomenon is one of the transnational Organized Crime which has adverse effects and complications on local and international level in social، political، economic fields، and security. Therefore، many international conventions including the Vienna and Palermo Conventions have emphasized on fighting with it and considering it as a crime. The internal law also considers it as a crime based on the money laundering combat law. From the perspective of jurisprudence، there are verses، hadiths and jurisprudential rules، which documents the sanctions and criminal aspect of this phenomenon. In this paper، the jurisprudential bases are discussed in detail; along with one fifth of the money laundering crime، neglect of solvent mixtures to prohibit money laundering and conflict with some important principles and rules of jurisprudence، including iodine، Tslyt and lead a group are not mentioned. The present study analyzes data on money laundering principles of jurisprudence and its prohibition is concluded.

According to article 698 of civil code، by making guaranty contract، the obligation of the (original) debtor is discharged and the obligation of the guarantor towards the creditor (guarantee)، comes into force. Although under the mentioned article، the guaranty contracts causes the transfer of obligation، but with regard to prevailing custom on guaranty (solidarity) and the necessity of using the words of contracts in custom purport، we can consider the transfer of obligation out of essence of the guaranty contract and any stipulation contrary to it as good (valid). Therefore in the custom viewpoint، the guaranty causes longitudinal solidarity i. e. arter the contract، guaranteed، remains as original debtor and the guarantor is responsible to pigment similar to a security.

Division of right into real and personal is one of the most important discussions of private law in civil or Romano-German legal systems. With reference to this division، discussions about financial rights are divided into two categories: law of property and law of obligations; the first being about real and the second to the personal rights. On the other hand، the words debt and object (tangible thing) are broadly applied in Islamic jurisprudence، and various and different rules devoted to them. There are certain similarities between these two and the legal terms of real and personal rights، and this made some Muslim thinkers to regard the words debt and object in Islamic jurisprudence as equal to the legal terms of real and personal rights. This article seeks to study the question whether the legal terms of real and personal rights are equal to debt and object in nature and application، and if not، what jurisprudential concepts could be treated as their equivalents. According to the author، firstly، because of the important differences between these terms، real and personal rights could not be regarded as synonyms or alternatives to debt and object; secondly، the jurisprudential words of right، property and debt are in some aspects are the same as the real and personal rights or could be compared with them.

In the recent decades، the discussion of «»fungibles«and» non-fungibles«while standing for surety and meeting one''s responsibilities and financial liabilities and taking the currency depreciation into consideration has been one of the most challenging jurisprudential debates. Both of the proponents and opponents of the theory of compensation have resorted to the very element. And due to their difference in foundations of reasoning they however referring to one specific element drew fully different conclusions. The presented theories can be set up under five important notions whereas we have chosen the theory that the currency is to be dealt with as fungibles in regard to its real value. In accordance with the preferred theory and in order to compensate the real worth of money we have to study it in the three following cases: A: changes occur along with the reaction of the custom (In this case the common law believes that when one receives loans and then repays his debt، the value of money differs in these two times، So he cannot arrange a logical and rational relation between the values of the money at these two times). B: changes come without reaction form the custom side. C: changes take place without having a clear picture of the reaction or non-reaction of the custom. The conclusion we have drawn is the permissibility and necessity of compensation of the real value of money in the first case andin the second case the same genus commodity or amount based on the nominal prices has to be given. In the third case there is no need for paying extra amount to»fungible«commodity or amount though to compromise suits best with precaution.