JOURNAL OF ISLAMIC JURISPRUDENCE AND LAW
Year:2010 | Volume:3 | Issue:5|Papers Count:7

Contract of Istesna’ is not new a contract. It has been long discussed by great juristic scholars dealing with its rulings. Sheykh Tusi in Al-Khelaf and Al-Mabsoot, Shafe’ei in Al-Umm and Sarakhsi in Al-mabsoot have discussed about Istesna’and it’s licit or illicit position, although in the past its applications were limited to instances such as orders for making boots, shoes and iron, zinc or wood utensils.In this paper, after explaining the meaning of Istesna’, this contract has been recognized as an independent one. Then, after introducing Istesna’securities, jurisprudential and legal issues on the matter and on the relations in trading stock, bonds and institutions in relation with issues of contract of Istesna’ and jurisprudence of selling have been studied. It has been tried to suggest solutions for challenges in the relevant field.

The following of religious commandments after prudence and corruptions. The prudence means a beneficial issue which produces spiritual or material advantage which is the opposite point to corruption. Inreletion with the following of religious command ments ofter prudence there are two major principles A-The thought of denial which is attributed to Eshaere who believe that no prudence or corruption etists inherently in the matter which is followed by the religious commandments, but the command or for bidding of the leg is lator produces prudence or corruption in the actions.B-The thought of proving which is sometimes attributed to all the rationalists or some of the most famous of them, believe that divine commandments.Follow prudence and corruptions which already have produced in the actions, although not understandable for us.

Lease of premises is a contract have a lot of application in society.in accordance with existance of some practical results on division between translative and promissory theory of the lease: such as possibility of possession of interests to others by lease holder analysis of the translative theory-that is an accepted theory by famous Islamic jurisprudents and civil law- is nessacery.

Permission (Eznieh) contracts are important parts of legal deeds that are used in a vast level of social relations.Familiarity with these contracts’ nature and the investigation of existing disagreement about their nature are necessary with regard to extensive use of these contracts. Because legal effects and commandments of these deeds have direct relationship with their nature. Disagreement about the nature of permission (eznieh) contracts results from different attitudes about the nature of the contracts and similarity of these contracts to permission. Some believe necessity is one of contracts’ components. Accordingly, permission (eznieh) contracts are not followed by necessity so they are not considered as contracts and their nature are more sililar to legal quality of permission. In contrast, some believe necessity is not a valid component of the contract and the contract is a reversible written promise. These people believe permission (eznieh) contracts have contract nature.On the other hand, there is not enough discussion about legal and religious sources of permission and its meaning. The effects of this legal quality has been emphasized. In this writing, we offer different definitions of contract and permission in religion and law. Then, we investigate the nature of permission (eznieh) contracts with regard to the definitions. In the investigation of permission (eznieh) contracts’ nature, legal and religious definitions of these contracts and their differences with legal quality of permission are considered.

People’s possessions in terms of others’ real properties are either on guarantee basis or on trust basis and trust possessions are either proprietary or religious. In several cases due to incidences like insanity and death in authoritative contracts, proprietary trust possession turns to religious one and this conversation of possession has consequences on the parties’ relationship which have not been explicitly mentioned in the Civil Code and legal experts and researchers have not noticed them yet. Since legal orders are lacking here and Civil Code is defective, by virtue of principle 167 of the Constitution, with reference to valid jurisprudential texts, the researchers not only stipulate evidences of trust possession conversion, but also count its effects.

The usury is prohibited in Islam. This prohibition be aimed at of real persons; because they have not any religious obligation; therefore the prohibition and obligation do not aim at them and because of the government is a legal person its bargains topically are out of prohibition of usury and in addition the government property including cash belongs to the people and considers as common property and when the government loans it to the people in fact loans peoples property to themselves and therefore if it takes any gain there is not any problem.

Abortion is considered both as a crime and a social necessity (at least according to those committing the termination) which roots in socio-cultural and politico-economic conditions. However, abortion might become medically inevitablety, since continuation of the pregnancy may hurt fetus, mother or both of them. Before ensoulment, if the mother’s life is in dander, all Sunni and Shia faqihs (jurisprudents) permit abortion. In case of hardship for the mother, most of the faqihs allow it. Some Sunni faqihs have gone so far as consider it mobah (halal).In case of ensoulment (beginning of human life in the fourth month), traditional Sunni and Shia faqihs do not permit abortion, while some of the contemporary ones authorize it in some special conditions. My article will focus on the case of danger for mother, which, in my opinion, is permitted, as a case of legitimized self-defense, by Sharia and common sense. In case of conflict between two wajibs (obligations), mother has the right to protect herself. So abortion in this case is authorized, and the physician and the nurse will have no civil and penal liability. Although some faqihs do not permit abortion in such cases, some others, with special emphasis on common sense, allow it.