Jurisprudence and Fundamentals of Islamic Law
Year:2012 | Volume:44 | Issue:2|Papers Count:7

Diversion, which is discussed briefly in the science of Usul al-Fiqh in the chapter on the absolute and qualified, while playing a notable role in different chapters of jurisprudence, is of varieties.Surveying the concept of diversion and its varieties, the present essay expounds its effects and results and emphasizes its important role in the process of inferring juristic precepts.

The Iranian civil code is mostly influenced by juristic sources and French law. In the article 1234 of French civil code, a legal institution entitled “terminator condition” is included in the causes of discharge of an obligation. The article 264 of Iranian civil code, which deals with description of causes of discharge of an obligation, corresponds to the article 1234 of French civil law. However, it does not mention contract termination clause as one of causes of discharge of an obligation. A question is posed, then, that whether contract termination clause is not in conformity with the Iranian civil code that it is not explicitly accepted. Analysis of the subject and investigation in jurisprudence indicate that should such condition be included in the contract in such a way that it may not cause ignorance with regard to the contract conditions, it would not principally contradict Iranian legal system. The present essay deals with validity of contract termination clause in Shiite jurisprudence and Iranian civil law as well as conditions of its actualization.

Although the right for intellectual property as a branch of legal sciences is absolutely recognized in the world, there is dispute among jurists and lawyers with regard to even some of its primary problems, such as sale of such properties in our country. Surveying some conditions of sale contract which seem controversial at a glance, such as necessity of object of sale being subjective, and explaining various dimensions of such properties, such as possibility of delivery, permanence of ownership, and honors and awards being owned by the creator, the present essay attempts to make a change in the present situation and remove a prevailing mistake regarding necessity of objectivity of the thing sold.

Precise recognition of concept of nasb and characteristics of that perverted ideological current as well as presentation of an exact, fair definition of it is of great importance, especially when one considers that Shiite jurists have treated that current as infidelity. The present essay analyzes and juristically criticizes different opinions on the concept of nasb ranging from Akhbari’s extremist to the Imam Khomeini’s excellent explanation, and comes to a fair, precautionary conclusion with regard to the that concept.

Study of validity of implications of proofs is among fundamental discussions in both Usul al-Fiqh and Fiqh. Authorized conjectural proofs (amarat) and practical principles can have indirect juristic implications as they have direct ones. Investigation of validity of such indirect implications and effects is entitled investigation of validity of implications of proofs. Some Usulis hold that implications of authorized conjectural proofs are valid since the divine law-maker has treated them as knowledge and certitude while those of practical principles are not authorized because they are not treated so by the divine law-maker. Some other have accepted that difference but have argued that what proves validity of authorized conjectural proofs is unconditional with regard to their implications while what proves that of practical principles is not so. Imam Khomeini, however, holds that implications of authorized conjectural proofs are not valid because of being treated by the divine law-maker as knowledge and certitude. Rather, it is the custom of the wise that differentiates between implications of authorized conjectural proofs and practical principles.

The concept of perjury or false testimony has no notable difference in juristic texts and Iranian criminal code. However, what both Shi'a and Sunni jurists refer to as their sources for determination of punishment of that crime results in the fact that necessity of public disclosure of perjurer is because of the harm which may affect the society and individuals in the future-something missing in the Iranian criminal code. In order to confirm public disclosure as the suitable and efficacious punishment of the perjury crime, therefore, we had better investigate opinions of jurists as well as proofs they have presented in this connection. Hadiths and other proofs referred to should also be presented and taken into consideration.

Restriction of option of meeting place to the sale contract is treated as incontrovertible in both Shiite jurisprudence and Iranian civil code in such a way that it is considered among necessities of Shiite jurisprudence by some and a matter of consensus by others. However, Malik and Abu Hanifa radically denied the prevailing opinion and Shafii had his own idea in this connection.Since transactions are not dependent upon divine instruction but rather are handed over to the custom of the wise on the one hand and the wise can generally discover criteria of their religious precepts on the other, the present essay explains various opinions of jurists on the option of meeting place reviewing and criticizing their proofs and arguments first, expounds the theory of generalization of option of meeting place along with its evidence and supporters secondly, and, annulling the peculiarity to sale contract, concludes that option of meeting place includes all irrevocable contracts (except marriage) in which the criterion of option of meeting place exists.