JOURNAL OF COMPARATIVE STUDIES ON ISLAMIC AND WESTERN LAW
Year:2017 | Volume:4 | Issue:2 |Papers Count:7

Article 387 of the Iranian Civil Code, following the Imamiah thinkers, has prescribed the termination of sale in the case of the destruction of sold object before delivery to buyer without seller's encroachment or negligence. Now, the question is whether this rule is valid, and if the answer is affirmative, is the aforementioned rule applicable in case of price loss before delivery as well? Criticizing the grounds of this rule, this paper has concluded that they are not of sufficient strength. Accordingly, based on the opinion selected by the authors namely the failure of compensation for the weakness of source by the conduct of famous Imamiah jurists, absence of the conduct of wise men for imposing the losses resulted from loss on the seller, possibility of the claimed idjma (unanimity) to have a proof as well as the immediate transfer of ownership upon the contract conclusion, the buyer must suffer the losses. Correspondingly, the rule of article 387 is exceptional and its basis has not been followed by other articles of the Civil Code. It is noteworthy that the Convention on International Sale of Goods (CISG) has adopted this rule and despite confirming the immediate transfer of ownership upon the contract conclusion, has not accepted the transfer of risk to the buyer before delivery.

Civil disobedience is an issue that attention has seriously been paid to and its scope has been discussed in recent years. In Iran, it is regarded as a new concern as well. Correspondingly, there have not been any significant studies in this respect. The theoretical weakness in this area resulted in conducting a more precise and comprehensive study aimed at developing the public law literature in this regard. Accordingly, the present article seeks to answer this question: What position does civil disobedience maintain in the Shiite political jurisprudence, and the domestic and international legal system? In order to elucidate these viewpoints, we have employed a descriptive-analytic method.Investigating the international legal order, it was indicated that these sources have provided some requirements for the states in codification of law and decision-making. That is to say, they oblige the states to respect the recognized rights of citizens and hold citizens obliged to obey the government which has fulfilled its duties. Furthermore, through providing various reasons, it was proved that according to Shiite political jurisprudence, criticizing and pointing out the mistakes committed by the government are regarded as not only a right but also a duty for the citizens and, under certain circumstances, this criticism can take place in form of civil disobedience. In the system of Islamic Republic of Iran, as well, by way of observing certain standards, civil disobedience can be considered as one of the aspects of the Article 8 of the Constitution.

Prior to date of fulfilling the obligation, it is possible that the covenantee, through a certain, reasonable and conventional assumption, come to a conclusion based on which the covenantor would not accomplish his/her contractual obligations at the agreed time (presumptive breach). In this case, the beneficiary, under certain circumstances, can exercise his/her right to suspend or terminate the contract and claim for damages. But, enjoying the doctrine of specific performance prior to the agreed upon date in the contract for dealing with the presumptive breach by the covenantee is not specified in the legal systems and, in contrast to Convention on the International Sale of Goods, it is difficult to perceive a legal and albeit a regular position for presumptive breach in domestic law. Accordingly, the present study, by means of a comparative approach, and in addition to examining the subject theoretically, investigates the applicability of this doctrine in order to develop and extend the sanctions arising from breaching the contracts.

The proof of will as the last volition of the testator that determines the status of some certain properties is of a great significance. One of the main elements of proof of will is the testimony of witnesses. Witnesses must have certain qualifications including maturity, belief, justice and sound mind. Regarding financial claims, in addition to oath of the claimant, there must be at least one male or two female witnesses and nothing would be proved through any number below this. Due to the nature of the will, these qualifications have some exceptions in Islamic Jurisprudence (Fiqh). In this regard, it is possible to derogate from two qualifications namely belief and number of witnesses in Islamic jurisprudence in certain circumstances. There is no similar consideration as to individuals' rights in laws of Iran and the US. Investigation of jurisprudential texts demonstrates that, in the absence of Muslim witnesses, the testimony of non-Muslims is acceptable. Furthermore, the testimony could be discriminative in terms of the existing witnesses' attestation and it is possible to prove one fourth of the will through one single witness. In US law, in some exceptional instances, it is possible to accept two witnesses in unwritten wills under certain circumstances.

The purpose of forming a contract is realizing the joint volition and fulfilling of its consequent obligations. In the event of a breach, in the Romano-Germanic system of law, Iran and some other countries, the obligation of the covenantor to fulfill the specific performance has been recognized as a fundamental principle and the covenantee, only in the case of the impossibility of obliging the covenantor, can take action to terminate the contract and claim for damages. In Common Law, obliging to specific performance is accepted as an exception and only in certain cases. In this article, the right to choose the most appropriate means of achieving the contractual purpose and securing the covenantee's interests including the request to specific performance or termination of the contract or claim for damages, or changing or replacing the obligation are preferred in terms of basis and economic efficiency. As in the new international instruments such as the Principles of International Trade Contracts (2016), the Principles of European Contract Law, the draft Common European Sales Law, the Civil Code of France (2016), the Civil Code of the Netherlands and Germany and the UK Consumer Rights Act (2015), the right and freedom of the beneficiary to choose the method for confronting the breach of the contract and remedy are accepted. The obligation to specific performance, whether being accepted as a principle, or an exception or a power, may be subject to two categories of barriers and restrictions arising from the status and nature of the obligation or circumstances after the conclusion of the contract.

The liability arising from property is always one of the most significant issues in the sphere of civil responsibility. Due to the importance of immovable property, as well as the extent of the damage caused by this property, the liability of owners and occupiers has always been considered to the visitors in estates. In this article, it is attempted to study in detail the responsibility of the occupier or the owner to the permitted and non-permitted visitors under English law and the Islamic legal system. In summary, it can be said that the owner or the occupier has a "common duty of care" to the permitted visitor and shall be held liable in the case of breach of this duty. In spite of the fact that principally there were no responsibility for the owner or the occupier to non-permitted visitors neither the English Law nor in Islamic and Iranian legal system in the past, nowadays, through expansion of the conception of duty to care or on the basis of customary invoking, it is possible to recognize the responsibility for the owner or the occupier.

One of the new-fangled phenomenon that has impaired the rights and health of women and consequently humanity and security of the society is the heinous act of acid throwing on the body and face of women and young girls. Acid violence, as a modern form of violence against women, is considered the reflection of gender inequality and discrimination in society. This act affects not only its victims, but also their family and society. Under Islamic jurisprudence, acid throwing falls under Hirabah in terms of type of the weapon and is regarded Corruption on Earth in the view of the act's repetition. Being a kind of gender-based discrimination and violence against women, and consequently breach of their fundamental human rights, this act is forbidden undoubtedly in accordance with International Human Rights Law (IHRL). Accordingly, states must exercise due diligence to prevent, investigate and punish the perpetrators of acid attacks against women. The present article, through a descriptive-analytic method and by means of content analysis, aims to illustrate the acid throwing under Islamic Law and IHRL.