MAQALAT WA BARRASIHA
Year:2008 | Volume:41 | Issue:89 (FIQH AND THE FUNDAMENTS OF ISLAMIC JURISPRUENCE)|Papers Count:8

In the sources of Islamic law, there are important and interesting discussions about concept and scope of usurpation. Some of these discussions have interned to civil code of Iran, but some of them has not codified in this code. With silence of code, we can use of these sources. For examples, if in the usurpation, possession on the property belonging to another person is sufficient or removal of possession of the owner is necessary too? Is the corpus of property is usurpable alone or the rights are usurpable also? Is the benefits of properties are usurpable as well as the corpus of property? Is the usurpation of joint property is possible by one of partners? In this article, the answers of these questions and the concept and scope of usurpation are studied.

Undoubtedly it is an indecent and censurable thing to investigate about people's individual conditions and knowing about their secrets. A sort of security is anticipated in Islam that is not exclusive in the world. It is the security of respect, prestige and thoughts of individuals. Undoubtedly this precious thing will be in danger with suspicion and investigation. On the other hand, in both principles of 23 and 25 of the constitution especially in the principle of 23 we have: the investigation of opinions is forbidden and nobody can object about opinions. The principle of 25 says: recording and revealing of the conversation or telegraphs and telegram and their censor and overhearing is forbidden, unless the law permits. This article attempts to study and explain this problem.

A word which has several meaning is referred as homonym with some real meanings, which the word includes them substitutionally, or it may have real and metaphorical meanings, or may have some metaphorical meanings. Whether to intend several meanings and to carry them to different meanings is acceptable or not, there is a dispute among experts of usul-al-fiqh and the most famous sayings about this subject is the permission and non- permission. This dispute among experts of usul-al-fiqh has transmitted into jurisprudents and they have dispute in some matters such as ablution, so the problem has some jurisprudential effects. It seems that accepting multiple meanings is possible.

Will is the base and pedestal of contracts and ownerships without which one cannot appropriate legal and religious impressions to contracts and ownerships. Will is a covered issue whose place is reversed and the discovery of which involves some kind of declaration, gesture being one of them. Gesture like other manifestations of will- speech, writing, work, and silence- has got some propositions. In general, gesture is treated in regard to the born dumb whose gesture is interpretive of his will unless he is capable of writing; in this case writing is privileged to gesture. Another application of gesture is in regard to the not-hereditary dumb whose gesture is the base of his contracts and ownerships; in this case any possibility of his future recovery does not affect the proposition, because in the present era this is the commonsensical principle employed in stock exchanges, and legislative houses. In all cases gesture must be clear and understandable and there should be no statement against that.

One of the problems, which are studied in Islamic Jurisprudence and has obtained many disputations on it is the problem of silence of defendant. Whenever a person sets forth a claim to a judge the judge requests the defendant to state his or her opinion about the claim. If the defendant replies to the request, he either denies the claim or accepts it. So there would be two react each of which has its own litigation. But there is another supposition; the defendant may by silent; He may neither deny nor accept the claim. What the judge can do in such a situation? Here in this article the question at hand will be studied upon the principles of Islamic Jurisprudence. Therefore first we will explain the question, and then we will study the Jurist's deferent answers to the question. Finally we will come to our solution to the problem

Getting affected from variations existing among religious jurisprudence propositions concerning the nature and consequences of the endowment (waqf) has resulted in the outbreak of different understandings among the law professionals from the Civil Code Articles containing the provisions for endowment. The relation between the substance of the endowed property to the endower (donor) and as a result possibility and impossibility of its return to him\her by ending of the endowment is one of the contradictory subjects. This study shows that despite opposing expressions of opinions, the Civil Code has not accepted the disconnection of ownership by endowment from the owner. This ownership has also not been transferred to the beneficiaries or to the endowment's legal entity. As a result, the donor is allowed to bring about in the condition of endowed property changes, which are not contradictory to the beneficiaries' rights. Besides, legal entity for the endowment has been considered without enough care and probably it is adopted by imitation; therefore, its usage, rights and responsibilities are not clear. Lasting of the ownership for the donor, results in a situation in which whenever the endowment due to any ending cause ends, complete dominance to the substance of the endowment returns to the owner or his existing successors. This legal situation has also special consequences, in a way that in case there was a sharing between an endowed property with a property free of endowment, with the sale of [Tee property, the donor would acquire the preemption right on the sold property, and this point is not in contradiction with the Civil Code.

Not with standing unity among muslim jurisprudents for legality of temporary marriage in islam, unfortunately some of opponent with their personal mistake understanding abuot temporary marriage, blames "Imamiya" for permissibility ruling of this kind of legal marriage. This paper with illustration of shared rules of temporary marriage and permanent marriage by explanation of its lawful from Quran &Ahlolbayt (s.) traditions, is answering to the misgivings with standing on historical backgrund, including age of prophet (s.) and final period of "umar" caliphate. The author substantiates the matter via principle of permission &non-abrogation of law and finally remarks wisdom of temporary marriage especially in necessity cases.