JOURNAL OF ISLAMIC JURISPRUDENCE AND LAW
Year:2012 | Volume:5 | Issue:9|Papers Count:6

Iqaalla-h is an agreement between two parties to revoke voluntarily a revocable contract. The legitimacy of revocation (iqaala-h) can be justified based on Koranic verses and with the assistance of reason, as well. Jurisprudents, however, consider traditions from the holy prophet of Islam (p.b.u.h) sufficient in this regard, among which there is the tradition”.Anyone who accords with the other party’s willingness to revoke an agreement, God will accept your (the prophet’s) intervention, on the Doomsday, for that person’s sins to be forgive”. The jurisprudents of two Islamic Sunni branches, Maalikee and Hanafee, regarded revocation (iqaalla-h) as a religiously recommendable action (mosta-hab) which accords with pthe prophet’s traditions.Jurisprudents of the two Islamic branches, Maalikee and Hanafee, all consent to revocation (iqaala-h) referring to the traditions of the holy prophet (p.b.u.h) and have stated its authenticity.However, there is disaccord among them concerning the definitions, conditions, nature and effects of revocation (iqaala-h). Shaafeide jurisprudents areall in accord with one another concerning the nature of iqaalla-h and all of them consideriqaalla-h to be revocation of a contract or agreement. Among Maalikee jurisprudents, however, there is no such an accord. Some of them consider iqaalla-hto be the revocation of an agreement or contract, whereas the majority of them regard it to be a new deal. Shaafeides treat iqaalla-has revocation. But thereare some among them who ask how anannulled contact or agreement can be revoked. The answer is thatiqaalla-his arelative rather than an absolute revocation of an agreement. Consequently the two parties can return to the first contract through a new iqaalla-h.Every agreement, however, is not revocable and iqaala-h is effective merely in revocable contractsbased on a bilateral agreement such as purchase and lease. But agreements not binding based on bilateral rights and revocable according to one party’s willingness and request such as matrimony orwaghf (the devotion of a property or estate to a religious or charity purpose) require a special justification for their revocation.The condition of increasing or decreasing is null and void in Shafeide jurisprudence, whereas in Maalekee jurisprudence it does not cause the agreement to be revoked on condition that certain rules and regulations are regarded.

One of the reasons for separation of couples is “expropriation”, which happens when the wife gives some property to the husband because of dissatisfaction to get separated from him.The question is that, whether in such case it is a religious duty for husband to comply with the condition of releasing his wife? And whether this separation should be done by court? And finally, whether the separation is automatically done after the parties agreed on the property should be exchanged or it is necessary to read divorce sermon.Jurists didn’t pay much attention to the first question and about the second one, the popular opinion is that it is not necessary to go to the court. And in antecedent jurists’ opinion about the third question, it is not necessary to read divorce sermon and most recent jurists believe it is necessary. Here the assumption of the need to go to court and no need to read divorce sermon is proved.

In accordance with opinion “Islamic jurists” and under the “civil code”, in the sale contract, whenever the subject of transaction is dissipated before the transference of the risk to assignee, the contract would be rescinded and buyer legally should give back thing has gotten from assignee. In law, The firest of rule is named guarantee of exchange and towel of rule is named security faults in title.This article attempts to examine this rule, guarantee of exchange, that hitherto was carried out at the performance of reciprocal contracts, in termination of contract, ie: dissolution and revocation, and then proves performance or failure of performance of this rule in revocation and dissolution and It shall study existence or non existence of automatic liability while failure of proof guarantee of exchange in termination of mutual interest contracts.This article proves that dissipation of object of dissolution will cause rescission and dissipation of object of revocation, without any effect on validity of revocation, will cause civil liability of possessor.

In Islamic Jurisprudence, to reject the validity of Diman malam yajib (the liability of what is not obligated), caused to plan extensions and subjects that has presented the diversity of opinions among jurists. Some of these extensions and subjects of discourse are so current and secular law to the extend that a group of jurists believe in the rejection the validity of Diman malam yajib, were planning about to justify and find a state for it’s integrity by sending them out from the scope of extensinons in Diman malam yajib.But some others, irrespective of current usage law and methods of rationalist have issued an order to invalidity of some of the mentioned extensions. The liability for objects of bail is one of the mentioned extensions that jurists have diversed their opinions in it’s integrity.Those who have voted to the validity rejection, know that as an extension of Diman malam yajib and liable to it’s rejection proofs.In this essay pros and cons proofs in the integrity of this kind of liability have been studied and firstly by the purpose of fortification of the proofs of integrity believers mostly based on verses and Traditions and on the other hand criticizing the pros’ proofs specially through proving the correct ness of Diman malam yajib, It has been endeavoured to define a criterion on strength of which can seek aremedy the diversity in other different extensions by making clear precisely this kind of liability.

Permenant prohibition (Hurmat) of marriage is one of Islamic instructions that the jurists have mentioned it as “causes of prohibition” in their books and by which it is forbidden to marry particular people for ever. In this case, laws of some Islamic countries follow lawful commandments. By following Imamieh Fegh (Imamieh jurisprudence) Iranian legislator have mentioned instances of permenant prohibition of marriage with the title of “impediments to marriage”. In this text, permanent impediments of marriage in Irania law (with a glance at ruling Fegh on Iranian law) in comparison to the law of Egypt has been studied. According to the findings of this research, permenant prohibition of marriage enjoys a special position in the order of family rights because it plays a vital role in protecting families from collapse, keeping People healthy and their lineage pure and original. In this case, Iranian and Egyptian legislators by counting some of the instances of permenant prohibition of marriage in law text, have been emphasized on it.

In Islamic jurisprudence giving obligation to drunkens acts and correctness of wordly and deedly acts and it's athari waz’y this acts, is an arguable subject between usulin and jurists. While usulian to lean on principals such as understanding abilities of duties from required; and by comparison of asleep, neglegant and mad, agree with not giving obligation to drunk acts and especially according to khitab al-waz` view, by analysis problem to causation, intoxicated should be responsible for the results of their deeds and wards.Majority of jurists by refereeing to rules such as” al-aimtnae bilakhtyar la yanafai al-akhtyar” related to delibratly drunk, say that intoxication cann' t be an abstacle to giving obligation and drunk and sober are equal in giving obligation. Deliberated drunk is someone who without having one of the legal excuses such as reluctance, necessity, ignorance; deliberately drink with awareness.From the view point of majority jurists, such person for having freewill and awareness in becoming intoxication and also for committing legal prohibition, would be recompand to punishment and results of his/her acts. Opposed to, undelibrated drunk who his/her intoxication is allowable and it is legal excuses. Such person would not be recompand to punishment and results of his/her deeds and words.