پژوهشنامه متین
پیاپی 58 (بهار 1392)

Financial decisions require a certain level of rational maturity and understanding. The question is whether growth alone is the subject of rightfulness of transactions and maturity does not have any role or both growth and maturity are the conditions of rightfulness of transaction or one of them is sufficient for rightfulness of a transaction. Another question is whether minor who is capable of discretion is competent to transact or not? What is the meaning of minor who is under guardianship? Is a minor person who is capable of discretion absolutely under guardianship or is entitled to act individually? When it is said that a person who is capable of discretion is under guardianship, does it mean that he/she is not entitled to transact individually? These are the questions that some of the jurisprudents have tried to provide answer to in their works. By studying these works, one can come to know that there are differences of opinion among the jurisprudents regarding the minimum level of growth for financial activities. Some of these viewpoints indicate that attaining the age of discretion is sufficient for some financial activities while it is not necessary to attain perfect intellectual growth. Some of the jurisprudents rely on the Quranic verse referring to growth in their arguments. Imam Khomeini's Kitab al-Bei' is one of the most important sources in this regard which gives a full interpretation and explanation of the verse growth.

Women without caretakers or women with bad caretakers have special psychological-mental conditions and face special social and cultural problems due to different reasons such as poverty and undesirable economic conditions and hence are among the most vulnerable strata of society. Given the fact that according to existing statistics over the past three decades the number of such women has been increasing, it is the duty of the government to adopt a special approach to their problems in order to fulfill their needs. According to Islamic teachings, the ruler of a Muslim state, as the guardian of society, and in line with the guardianship that he has over the financial resources, is bound to pay special attention to such women and protect them. This issue has solid fundamentals in the Islamic Republic of Iran. The founder of the Islamic Republic, Imam Khomeini, in his recommendations to officials asked them to pay special attention to the oppressed and downtrodden which includes the said women as well. (Imam Khomeini, 2006, Vol 17:3)The main thrust of the present paper is to study the legal and jurisprudential principles aiming at protecting women without caretaker and women with bad caretaker. Attempts have been made to prove the guardianship of the ruler and his obligation to pay attention to the needs of the needy strata, particularly the said women. Also the principles and policies employed in the Islamic Republic of Iran to protect the vulnerable strata have been explained.

The main thrust of the present paper is to find out whether appointment of women to top managerial positions (such as general director, minister and head of the three branches of government) is permissible from jurisprudential point of view. In the first place the Quranic verse on the basis of which jurisprudents try to prove the impermissibility of appointment of women to managerial or governmental positions are analyzed and then their connotations are critically studied. The main verse used by the jurisprudents is the verse 34 of Chapter 4 of the holy Quran. Imam Khomeini’s fatwa as well as his argumentation given in his book, Tahrir al-Vasileh, is discussed in this paper. An analysis of the said verse makes it clear that the "protector and maintainer" refers to the role of husband (man) in the family which denotes to man’s responsibility in protecting the family. The Arabic concept of fadhl means affluence and its referent, based on some part of the said verse (some of them to others) is men’s power of reasoning and physical health as well as emotion and beauty of women. This verse does not at all prove the absolute guardianship of men over women and hence through connotation one cannot infer the impermissibly of governance and management for women. Neither other verses refer to the impermissibility of managerial or governmental positions for women.

The will of one person to create ownership for another has always been a controversial issue among jurisprudents. Some of the jurisprudents maintain that the will of one person is so strong that he or she is entitled to make another person owner of his or her own property. At the same time there are jurisprudents who oppose this viewpoint. At the same time, some other issues such as endowment and will expand the scope of this controversy. Some jurisprudents consider these two institutions as unilateral possessions. Still there are other jurisprudents who maintain that on the basis of the rule of prohibition of forceful ownership and the principle of lack of guardianship, such ownerships are exceptional. Imam Khomeini advocates the latter viewpoint while considering will as something created by the testator but ownership of property is subject to the acceptance of the legatee. Although they consider endowment as stoppage, the precondition that taking and release makes it correct has made the conception of unilateral ownership of these two legal institutions difficult and hence they consider ownership on the basis of one person's will contrary to the freedom and ownership of the beneficiary.

Before the victory of Islamic Revolution in Iran in 1979, most of the revolutions in the world were under the influence of 1917 Bolshevik Revolution in Russia. But the Islamic Revolution, contrary to the revolutions before and after the Bolshevik Revolution, achieved victory in the name of Islam and by focusing on inseparability of religion from politics. Just like many other great revolutions, the Iranian revolution too was entangled in civil war after the victory. The main question of the present paper is: why after the victory of Islamic Revolution, Iran was dragged to war with Iraq?Through comparative method and comparison of model, attempts have been made in the present paper to argue that after the victory of the revolution in Iran the erstwhile regional order was upset and Iran was in its specific post-revolution situation. On the one hand, Iran was engaged with the anti-revolution groups inside and outside the country and on the other was trying to preserve the revolution and export an Islamic model to the Muslim countries. Ultimately, the miscalculations of the Baath regime in analyzing Iran's defense capabilities led the Baath regime to wage a full-fledge war against Iran on September 22, 1980.

The Iranian Civil Code, in accordance with the viewpoint of most of Shia jurisprudents, consider the condition of lack of dismissal of advocate during the contract binding for the client. However, there are also some viewpoints which oppose this approach that mainly rely on the fact that power of attorney is permission-based. The present paper is an attempt to study the executability of lack of dismissal of advocate. Attempts are made to prove that the contract of power of attorney is permission-based, therefore, the general rule, applying to the contacts in which conclusion of the contract negatively or positively depends on the permission, is also applied to the contract of power of attorney. Hence, the client by dismissing his/her advocate abrogates the permission given to the advocate to act on his/her behalf. Consequently, despite the violation of the client of the condition of lack of dismissal, the advocate is stripped of advocacy. Hence, despite the prohibition of the said violation, one should find other jurisprudential guarantees for the execution of this conditions such as reparation of damages or abrogation of the original contract.

Avoidance of a husband of paying the marriage portion (mehr) when he can afford it is not acceptable, for many authentic traditions prohibit it. Also commitment to a marriage portion which is not affordable by husband is prohibited and impermissible. On the other hand, a wife is not entitled to ask for marriage portion during the time of duress and when her husband cannot afford it. According to the Quran and traditions, an indebted person who cannot afford to pay the debt should be given enough time to pay it. Since the husband is also committed to pay marriage portion to his wife, this rule applies to him as well. In case the husband can afford to pay the marriage portion but refrains from it, there are certain mechanisms in Sharia and the law to make him pay. One of these mechanisms is to imprison the husband, but imprisonment of the husband who does not pay the marriage portion is not legal if he cannot afford to pay. But if he can afford and at the same time declines to do so, he is imprisoned to pay.Another mechanism is to sell the properties of the husband. If the husband has some properties other than what has been excluded by Sharia as basic necessities, they are sold on the verdict of the court to pay the marriage portion to wife. If the husband is capable of working and earning income, he should work and pay the marriage portion on installment.