پژوهشنامه متین
پیاپی 57 (زمستان 1391)

The present paper is an attempt to verify the correctness or incorrectness of setting conditions in a marriage contract. In the first place, the concept of choice of condition, its duration, the document of choice of condition and necessity of lack of incompatibility of condition with the Book and tradition are discussed. Also the jurisprudential and legal viewpoints about choice of condition in marriage contract are discussed. The viewpoints of the jurisprudents, the civil code and the viewpoints of jurists are also discussed.

Concepts such as salat (daily prayers) and zakat (alms tax), in case of stabilization of condition, had become truth in shar’iyeh meaning and even they were so during the time of the caliphs. In other words, in case of stabilization of condition in their time, their moteshar’iyeh truth was proved. But the question is whether these words or concepts were truth or other forms during the time of the holy Prophet (PBUH).There are seven approaches to the question, i.e. whether it is shar’iyeh or moteshar’iyeh truth. The issue also needs an elaboration on proving of shar’iyeh truth in absolute term or lack of its proving in absolute term with regard to words frequently used in their non-usual meanings in the words of the holy Prophet (PBUH). It is assumed that the holy Prophet (PBUH) used them to create new meaning. There are five approaches to absolute proving and lack of absolute proving. Attempts have been made to clarify these approaches and their argumentations. It is argued that all five approaches all applicable to shar’i concepts, but each concept must be studied separately. Also the usefulness of unusefulness of having shari’yeh truth has been discussed.

The rule of Rejection of Way is among important jurisprudential rules, which, according to dominant jurisprudential approaches, is based on the Quranic verses, authentic traditions and consensus. In many cases, jurisprudents consider this rule as a base of inference of Sharia decrees. According to this rule, any act that may pave the way for the domination of infidels over believers is impermissible (haram). According to this rule, any agreement, contract, transaction or pact that may lead to the superiority of the infidels over the believers is not legally valid. This paper is an attempt to study the concept and content of the rule of Rejection of Way, its jurisprudential status and documentations in the light of jurisprudential viewpoints of Imam Khomeini. Also the secondary rules based on this rule have been analyzed. The most important argumentative document of this rule is the rule of understanding of reason. The content of this rule which is definitely compatible with the two elements of Islamic dignity and independence are understood by reason and its conception leads to its confirmation. Hence the main concern of the present paper is to lay emphasis on the requirement of understanding of reason. Other issues discussed in this paper include the relationship between the rule of rejection of way and other arguments, the source of determination of referents of domination, the idea of rejection of way and life in today’s world and finally rejection of way and economic independence (necessity of national production and resistance economy) within the framework of Imam Khomeini’s thought.

There are two major approaches among jurisprudents to pending contract. Some consider it valid and some invalid. Both rely on rational and jurisprudential reasons in their arguments. The opponents of the validity of pending contract rely on consensus as the most important reason. The advocates of the validity of pending contract, mainly contemporary jurisprudents including Imam Khomeini, while rejecting consensus, challenge tanjis in contract. Among the jurists, the predominant approach belongs to the advocates of the validity of pending contract while invalidity of pending contract according to them refers exclusively to those mentioned in the civil code such as Articles 1068 and 699. In critical approach to the theory of suspension in forging and in basis, it is argued that suspension in forging is fundamentally baseless because in suspension in forging the contract is not formed to talk about its validity or invalidity. In fact validity or invalidity belongs to the situational decrees which require an external subject. On the other hand, it is argued that contracts and transactions are not canonical truth and the sharia, except in few cases, does not interfere in the precept of the rational and the issue belongs to the commonsense and is valid.

The most important pillar of achieving unity in the viewpoint of mystics is mystical intuition. They argue that the distance between human being and other phenomena is eliminated in intuitional awareness and the truths manifest themselves to the mystic in present form. While according to philosophers, unity is achieved through existence. And for the mystics this is achieved through intuition. The explanation of the principle of uniting intuition underlines the status of unity in the circle of ascension and descension. Existence and multiplicity are manifested in the curve of descension. The creator is transformed to creature and gradations are formed. At this stage, the wayfarer observes the manifestations and realizes the existence of multiplicity. His/her observation at this stage is visual, while in the curve of ascension, the wayfarer gives up eyes and observes the truths through insight. Unity occurs in the curve of ascension, where multiplicities are diluted and the wayfarer traverses the stairs of purification by the steps of negation. In other words, the ultimate unity is the ultimate purification and negation. According to Imam Khomeini, the wayfarer, at the peak of purification, achieves the highest stage of unity, which is praising. This indicates that existence is materialized in the curve of descension, while in the curve of ascension realization belongs to intuition. Existence includes creation, assimilation and multiplicity, but intuition includes negation, purification and unity. A philosopher proves the descensive existence while mystic proves ascensive existence.

Ama’ is among mystical issues discussing the status of the Lord before creation of creatures and also discussing the truth of being before manifestation and embodiment. This subject, on the one hand, belongs to the status which is the source of creation where the invisible process lead to creation of beings and, on the other, is related to the expanse of intuition and knowledge of mystic and extreme of sublimation and the dark and mystical arena or arenas which are out of reach of any highflying wayfarer. There are two approaches to ama’ among the mystics. Some consider it the status of ahadiayt and the first embodiment, while some consider it the status of wahidiyat and the second embodiment. Imam Khomeini has an innovative approach. He argues that ama’ is compatible with the faiz aqdas. The present paper is an attempt to verify the exclusiveness and correctness of this approach.

In his book, Kitab al-Bai’, Imam Khomeini in many cases considers ghrorur and tadlis as one and the same thing. Clearly there are many common aspects between khiyar tadlis and khiyar ghorur that have been emphasized by Imam Khomeini. Nevertheless, their differences can be studied and will be useful for their better understanding and use. It is said that the application of the rule of ghorur requires loss, while in tadlis there may be no loss. Also tadlis causes the right to abrogation while ghorur causes compensation of loss. Among other differences between the two, one may mention the intention to deceive or differences in their foundations. Finally, the relationship between the two may be considered as general and particular. The last feature specifically paves the way for moving towards unity of rules of responsibility.