CIVIL JURISPRUDENCE DOCTRINES
Year:2014 | Volume:- | Issue:8|Papers Count:8

In accordance to the Article 1106 of the Civil Code, the husband is responsible for the alimony of wife in permanent marriage. The outstanding jurists and lawyers have regarded "the demand of the marriage", "the order of the lawgiver for the obligation of the husband", "non-permissibility of the ordinance of alimony" and "being imperative the law of alimony" as the documentations of this requirement. Thus, they regarded the stipulation of the waivering of the alimony in permanent marriage as the stipulation against the demand of the marriage, and against divine law and also as an application for the rule of "waivering the thing that is not required" which is inconsistent with the nature of alimony as being decree and its rule being as an imperative one. However, those who believe that such a condition is invalid are disagree about in other aspect and some consider the contract to be void (invalidating condition) and most of them believe that the contract is not void (invalid condition is not invalidating). Dismissing the arguments of those who believe in the voiding of this condition and providing some justifications for the correctness of this theory based on the rule of sovereignty of the will as a rational-religious rule, this article concludes the correctness of such a condition.

Nahjolbalaghe that contains the precious saying of Amir al-Momenin Ali (A. S) from the time that it has been written by Seyyed Razi in the second half of the fourth century has attracted much attention of the scientists and scholars in various fields of Islamic science. Perhaps literati and theologians who has gained greatest benefit from the sea of teachings of Ahl Bayt (A. S), and on the other hand, jurisprudents and especially their predecessors have cited less of this valuable book in proving jurisprudential topics, including civil law. In this study, we have attempted to defend from the Nahjolbalaghe as a juridical source and by studying some juridical issues based on Nahjolbalaghe we want to show that jurisprudents and researchers are forced to refer to this valuable book in their juridical inferences and especially in topics related to the civil law. And since the civil law issues have been raised widely in Nahjolbalaghe, it has been content with some of its examples in this study that in any case, while examining the arguments of jurists, the way of arguing with Nahjolbalaghe for proving the proposition in question has been expressed.

It seems that there is no taking possession in many sales of stock market. Some of jurisprudents have not allowed and permitted the sale which is not taken possession. In the present research, the concept of the bill and its decree in the stock market have been studied and analyzed. Then, the analysis of evidences of the decrees from the perspective of Shiite jurisprudence and processing the data of the present research in adapting the sales in the jurisprudence which are similar to the trading in stock market have been considered and their ordinances have been expressed. After adapting the stock market trading with the juridical trading and evaluating the evidences, on the understanding of the custom, the deals based on such a taking possession is apparently lawful, although it is also practicable in the form of making a forward purchase, contract of settlement or the contract of deposit and it is also allowed religiously.

It has been spoken for a long in our country about the diversity of capital market and variety of financial institutions to mobilize savings and increasing capital investment and raising formation of capital. In this regard, the endowed funds in the West and the Far East were providing the finance of many social and cultural institutions and expansion of such institutions and endowed funds in Iran can develop the financial markets and grow investment in the country. After being feasible a religious endowment of funds, the purpose of this paper is finding out the potential of innovation in Islamic financial instruments through establishing and developing of institution of endowing funds and investment for financial supplying of Islamic contracts and finally its effects on the reduction of the poverty. The research is based on a theoretical analysis and upon reliable internal and external sources, as well as receiving responses of the designed questions about the research topic from the office of the Islamic religious authorities. The results of this study show that, given to the guidelines provided by the authors, if endowing money be used as a financial instrument in Iran, the dedicated funds can be regarded as a source for increasing capital investment in the types of Islamic and legal contracts and spending the profits of these investments in programs of removing poverty can have an effective role in reducing poverty in the society.

Endowment is a good tradition that we can see not only in Islam but also in other divine religion. Endowment is one of legal actions that the Muslim lawyers have different opinion about its being a contract or a unilateral contract. Moreover, there is disagreement whether the taking possession is stipulation for its correctness or for its requirement. Some believe that the endowment property belongs to God and some think that it belongs to the beneficiaries of trust. If acceptance and taking possession is not condition of the fulfillment of the endowment and it belongs to the beneficiaries, we can regard the endowment as an application for the giving unilateral contract. Referring to the views of jurists, it will be clear that not only the acceptance is not required, but the taking possession is regarded as the condition of the necessity of the endowment. Therefore, assumes that the ownership of the endowment transmit into God or the endowment was the removal of the property, again the interests of the endowment enter to the property of the beneficiaries of trust, even though the majority jurists believe that both property and interests belong to them. So it can be said that endowment in nature is giving possession unilateral contract.

In jurisprudence, properties are divided into deferent kinds. Borrowing from jurisprudence, civil law gives deferent divisions for properties, too. One of these divisions is dividing property into particular thing and general in particular and general in liability. Of course, the legislator has not explicitly expressed this division in the first chapter of the civil law, but given to the different materials that have come in the chapter of the trafficking of the civil law in general, this division can be withdrawn. Since the transfer of ownership might be in one of the mentioned forms, and no separate discussion of this division has been done in jurisprudence and law and its effects, a research in this field is necessary. In a descriptive analytical method, this paper has dealt with the concepts of the specified thing; general in specified and general in liability and then the effects of this division in deferent cases has been discussed and it has been clarified that each of specified thing, and general in liability has its own characteristics and differences and general in specific can be joined to specified thing.

Iranian civil legislator influenced by the thought of Shiite jurisprudence in Article 233 of the civil law have cited the condition against the requirements of the contract and the unknown condition due to the ignorance of the considerations as tow null and making void conditions. The question in this respect relates to the concept and the foundation of the making null of these conditions on the one hand, and the possibility of development of the cancelling conditions to other than those inserted in mentioned article, on the other. Legal-juridical studying and considering and criticizing the juridical and legal thoughts of given in this respect, this paper has reached this conclusion that the condition against the requirement of the contract is a condition that is incompatible with its nature (according to the legal definitions of certain contracts and with regarding to the content of the forming intention of the parties and costume of the contracts that can be inferred). Again, the unknown condition makes the considerations unknown when it relates to the attributes or the conditions of the considerations or it follows the ignorance of the considerations by the judgment of the costume. The foundation of the null and cancelling of the mentioned conditions have been also their disruption of the conditions and basic foundations of the contract and there is possibility of developing invalid and cancelling conditions to other conditions that cause disruption of the foundations of contract.

In addition to the abundant emphases that the Quran has made on the writing of the debt, Shiite jurisprudents have regarded the verse 282 of the chapter Baqara and deferent traditions as the reasons for the reliability and validity of the writing debt and have considered it as valid evidence. On the other hand, announcing contrary position, some of Islamic intellectuals have considered the denotation of these reasons, particularly the traditions that have come in this field, as insufficient for proving the validity of writing debt. Traditional studying of this subject and propounding the available difficulties and criticizing and considering them and rejecting the inferences that opponents have of these traditions that writing debt is not valid, we concluded in this paper that the above verse and the traditions which are available in this respect have complete denotation on the validity of the written document as one of the reasons of proving the subject and all the difficulties and questions can be answered and rejected.