JOURNAL OF ISLAMIC LAW AND JURISPRUDENCE RESEARCHES
Year:2014 | Volume:10 | Issue:37|Papers Count:11

Lesion is a serious imbalance about the value of the considerations in a contract. Aggrieved lesion can terminate the transaction. The following three conditions are necessary for the realization of lesion option: the contract is to be bilateral, the economic imbalances at the time the contract was concluded and the ignorance of swindle. Some jurists have identified the criteria for gross lesion, but, according to the famous jurists that followed by the Iranian Civil Code the usage and custom may discern it.

One of the bank contracts which is significant in both allocation and equipping of sources is limited partnership contract. The agent in this contract is considered as trustee and his claim on termination of stock without being excess or negligent is accepted. He would be agent‘s associate in both benefits and losses. Therefore this contract won’t have an economic justification in banking operations, so in order to keep limited partnership contract in banking contracts and also put the liability of stock on the agent, the Islamic researchers have suggested some solutions like condition of liability to be brought as an implicit alternative contract. However, two aspects are to be considered for validity of condition of liability; first, it should not be against the exigency of the contract of liability and second it should not be opposing with Quran and narrations. Although some are arguing about the nullity of condition of liability if it is against the exigency of contract, we will try to review and discuss about that theory based on narrations and approaches of lawyers and Islamic scholars and finally we would suggest a new theory which is called “disaccord of condition of liability with Quran in limited partnership contract”.

It must be understood there is a disagreement among the jurists about theft of public funds. Some of them, with regarding to Sahiheh Abdollah Ibn Sanan, believe that possession in public funds is the same as possession in trophy. Since all people share public funds, if thief steal more than his share of public funds, the governor cut off his hand. But if he steals his share of less than his share, its rule will be vice versa. But some jurists disagree with the first theory as previously mentioned. They believe it would not be cut off thief's hand in every situation. Other jurists doubt in this rule based on the first and second theory. In this article, the authors analyzed these theories and finally they resulted that the rule about this issue related to public relief and if the thief's action interfere with public relief which named “trying to corruption”, it can be regarded some punishments based on Ayah 33 of Surah Maedeh for the thieves.

Void Clauses” are clauses that make a lawful thing unlawful or an unlawful thing lawful or its requirement is in conflict with a fixed levied sentence. Undoubtedly these clauses are void and the obligor not only doesn’t have to do them but is not allowed to do them. The disagreement point is whether void clauses are the nullifier of contract too. The jurists that have considered the illegal clause nullifies, generally referred to lack of basis of “intention” and “consent” and also the emergence of “both sides’ ignorance of properties” in case of nullifies of clause and rarely some mentioned “lack closeness to illegal clause” as a part of correctness of the contract. In contrary, the others answered to these objections in detail. In this group of jurists’ view the clause compared to the main contract has adjunct aspect and is unable to disrupt in main basis. In this article, we have tried to do a correct judgment between these two opinions. On Imam Khomeini’s view there is no reason for the illegal clause to be diriment it and the other reasons of nullifies of void clauses with regard to legal nature of the clause - obligation by the same obligation - is not acceptable and if it was accepted it wouldn’t include all the void clauses. Of course, stipulation is with a tacit obligation in which obliges able to terminate the contract in case the clause doesn’t come off or terminate the contract as the reason of the tacit of the clause.

This article is written with regard to the wide range of variety of votes which are discussed in the books of Usoul about the validity of Al-Zavaher for those exist in the time of verdict and the lake of the validity for those are absent in the time of verdict. Finally, is it come true the relation of this vote to Mirza Qomi as a matter of fact? This article offers the lack of actuality in a descriptive and analytical research. It is better to say that was a concept and a type of a group of Usoul scholars.

The Principle of “Taadol Tarafoei” which is also referred as “Tanazaor Principle” is one of the principles of fair trial. This is as the primary principle in all judicial systems in the world. This means that there should be fair deal between parties. Hence, violating this principle causes injustice in trial. This principle which is the base of justice is indicated in international documents such as European Convention of Human Rights. However, in none of Iranian laws we don’t see it as the principle for establishing justice in judicial trial. The present article tries to study the base and nature of this principle in Islamic law and international documents.

Warranty effects are specific for the type and duration of buyer’s choice to own commodities. Guarantee or warranty, although not explicitly mentioned in religious texts, but the guaranty has long been debated by the Islamic scholars and jurists. Importance of customer’s satisfaction and buyer’s goods-producing mutual concern with the aim of further interest arise Islamic scholars and jurists with diverse opinions and views of Islam were considered beneficial to the consumers.