فصلنامه حقوق اسلامی
سال یازدهم شماره 4 (پیاپی 43، زمستان 1393)

When debtors are unable to repay, they are granted a respite till have capacity to pay. The question arises as to whether the primary rule is capacity or incapacity and indigence of the debtor to pay his debt. And also whether he is incarcerated until he pays the debt if the primary rule is his capacity and he could not establish his indigence. In this article, we try to show that the primary rule is incapacity of debtors taking into account the conceptual contrast between monetary capacity and incapacity and it seems based on traditions (Hadith) that incarcerating the debtor is admissible until his/her financial status is ascertained. The point is that this is not a punishment but the incarceration is merely for identifying the debtor's financial status. So it cannot last more than needed for identification of the debtor's financial status.

Associate professor, Islamic Institution for culture and Thought, Quran and Hadith department Protecting sharia rulings or "Ḥarim-e Ḥimā" (protected area) rule is one of Fiqh general rules inferred from Quran and traditions (Al-sunna). With an intention of more certain protection from sharia rulings, according to this rule, one can extend definite prohibition (Al-Hurma) from core point of the rulings to the surrounding area. This rule is also valid among custom and rationals. Accepting this rule can be a turning point in Fiqh Inference and legislature or policy making. Macro cultural and juridical policy making can benefit from the rule and manage risk points properly.

There is not a clear rule about the necessity of Rushd (maturity) for the marriage to take effect. Almost all Shia scholars regard the marriage of a Safih (feeble-minded) person without permission of her/his guardian as ineffective, because of financial implications of marriage and based on general rules of incapacity of Safih and related traditions. Some legal scholars distinguish contracts regarding Mahriya from marriage and believe that incapacity of a Safih is limited to agreements about Mahriya and her/his very marriage is valid. This differentiation does not seem acceptable due to the cohesion of Mahriya and marriage. Mahriya is subsidiary to marriage and an implicit obligation in marriage. Therefore, there is no choice but to say that Safih is regarded as Mahjour (ward) in marriage. The fact that the legislature has not mentioned the necessity of Rushd (maturity) in marriage has its roots in the special status of puberty age and presumption of Rushd at the time of the adoption of civil code and the addition of the clause "physical capacity for marriage'' upon which marriage was forbidden before achieving certain age.

There is no contention between Shiite scholars about sexual right of wife and husband except in subtle points. A wife is bound to comply with requests of her husband in sexual affairs if done in appropriate time and place‚ but the wife does not have such right except that husband has to make a copulation every four months and bedfellow every four nights. However‚ according to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), wife and husband have equal rights in this area. Although‚ wife and husband are not morally same in this area‚ but having different rights may at first sight cause one regard the first approach void and reactionary and the second right and progressive. Therefor some writers come across as quite passively with contents of the Convention and others seeking to criticize the Convention are involved with confusion and chaos and this raises the necessity and importance of this study. After explaining the two approaches on sexual right we will illustrate three factors for analyzing the issue i.e. “cultural roots” “characteristics of men” and “the right to legislation” and try to study the Convention's approach based on these factors. In the end, we will have a critical analysis of these factors with an overview of some wrong conclusions before we explain an Islamic opinion on the issue.

The birth of the "objective fault" concept goes back to early19th century as a reply to subjective fault critics who put the emphasis on the restorative function of the civil liability system and believed this concept is not efficient enough to keep up with the corrective justice. In fact, the emergence of objective fault is owing to the elevated position of reality and realistic approaches in legal studies; approaches that put an end to the totalitarianism of metaphysics appeared in the form of liberal morality and individualism in the legal system. Extreme realists do not believe in metaphysical concepts including justice or fault and place the importance only on the reality. However, moderate realists emphasize on interaction between metaphysics and reality and with the emergence of customary, religious, philosophical and economic principles of fault, this interaction paved its way into the legal system. Nevertheless, challenges seen about objective definition of fault shows achieving this interaction as the basis of functional balance of the legal system is not easy.

Expertise in Iran’s civil procedure rules is regarded one of the evidences and is uses when a contentious fact has some technical and specialized aspects. Court's decision in these cases is based on expert's opinion. The influence of expert’s opinion on partie's very entitlement or its scope encourages them to raise objection. The large number of references to expertise and repeated objections from both parties, which result in referring the issue to experts committees, is one of the main factors of procedure elongation. Both parties regard making objection as their right and expect a new committee of experts be set up with every objection. Although ambiguous expression of legislator about giving opportunity for objection can be deemed as giving absolute right for objection to parties, but referring the issue to experts committee is only necessary where the court deem the objection to expert’s opinion acceptable and demonstrated. The legislature has also welcomed this approach in recent laws.