JOURNAL OF COMPARATIVE STUDIES ON ISLAMIC AND WESTERN LAW
Year:2018 | Volume:5 | Issue:2 (16) |Papers Count:7

The Principle of Autonomy is the most fundamental rule in private law and has significant consequences such as contractual freedom and the possibility of creating new dealing patterns. Therefore this principle is of a great importance and has a long history in two legal systems of west and Islam. The principle of autonomy has origins in theoretical foundations and debates of philosophy of law in one side and specifically in the present time that the expansion of economic relations and special commercial needs has left no choice except for developing and rethinking in contractual patterns in national and international levels has numerous practical results and usages in the other. The reason of presentation of this principle in each of the two legal systems, foundations and consequences of tendency toward it, its primary theorists and historical background of consideration of the principle and its developments are three axises that has been studied in this article in two separate parts and comparatively; first in western legal system and then in Islamic one. One of the achievements of this study is proving the pioneership and chronological supersesion of tendency toward this principle and acceptance of its consequences in law of Islam. Furthermore, incorrectness of the opinion of some professors that have attributed the enactment of Art. 10 of Iranian Civil Code to "following the European legal theory" is appeared. Many centuries before turning of European lawyers and philosophers to the principle of autonomy, this theory had been expressed explicitly by most of the famous Imamiyah jurists.

In law of the west the contract is always engaged with obligation, while based on one of essential classifications within Islamic jurisprudence, the permission can be a foundation of making contracts as well. The dual of permission-based contracts and obligation-based contracts is one of the Imamiyah jurisprudence’ s specialties. The permission, besides that can be a foundation of making contracts, can be applied for making trusteeship too. Based on the jurisprudence’ s well-known statement, permission can be the cause of trusteeship and permitted possession. Not only these two functions are different from each other, but also there is no correlation between them. Separating these two functions can be employed to explain and resolve many of the legal issues. For example, justifying the question that how it would be possible for a permission-based contract to be void despite rhe existence of trusteeship or how the termination of a permission-based contract would be possible after the dissolution and expiration of the period of permission while the possession is remained permitted, all are dependant upon the acceptance of this separation and acknowledgement of non-correlation between contract-making permission and trust-making permission. Furthermore, maintenance of permission based contract while the trusteeship and permitted possession is terminated is one of the other results of this functional dualism. The reason of the fact that the violation of trustee leads to loss of trust meanwhile trustee contract still remains is also rooted in the duality in the functions of permission. In this article, through applying a descriptive-analytic method, these two different functions of permission would be examined.

Nature of Reward is one of the subjects on which there is disagreement in Imamiyah Jurisprudence and Law. Recognition of the legal nature of Reward is of significance in terms of the conditions of fulfillment and its consequences and rules. The purpose of this article is recognizing the nature of Reward in Imamieh Jurisprudence, Iranian law and law of the west. The Jurists and lawyers have expressed different views in this regard. In the Imamiyah Jurisprudence there is no separation between offer of reward to the public and offer of reward to the certain person and jurists have stated their opinions in general terms. In the Iranian Civil Code the nature of reward is not clearly explained and the term of obligation has been employed in an absolute way for refering to its nature. According to jurisprudential and legal analyses, it seems that reward have various external examples that can be determined in each case according to its requirements in the form of contract or unilateral juridical act or common causality. In law of the west, offer of reward to a certain person is not disputed and its nature is considered to be contractual. What is controversial is the offer of reward to the public. Some legal systems have accepted the the contractual approach and others have adopted the reward as a unilateral promise in which there is no need for acceptance and knowledge of the rewarder is not required except for the case of an explicit stipulation in the contract.

According to Afghan law, the Islamic jurisprudence and international instruments on law of contracts the non-performing party has to compensate the losses of the aggrieved party in a way that if the contract had been performed properly, he would be in such a situation. Therefore, despite the well-known disagreement of the jurists, the aggrieved party can claim loss of profit, provided that it is not fictitious and be principally receivable. Similarly, the spiritual damage, in spite of some disagreements in Islamic jurisprudence and international instruments, is supposed to be payable and transferable to other persons. Damage of delay payment, despite the controversy in the Islamic jurisprudence as a result of the depreciation of the value of the money, is claimable and in Afghanistan's law is limited to three percent of the total annual debt. Albeit, when obliging of the non-performing party for compensating of the loss is possible that the damage resulting from the breach of contract is definitive, arising from the breach of the contract, and be foreseeable at the time of the conclusion of the contract, and in Afghanistan's law, the performance by the obligee has been made.

Nowadays, human rights education is of great concern for the international community in promoting the respect to human rights. However, inattention to the challenges and obstacles that can encounter education process with inefficiency would cause failure in achieving the goals of education. Identification and applying effective and appropriate means according to local capacities in each region would provide the requirements to overcome the existing and perceived challenges and obstacles. Dual challenge of the discourse of religion and human rights in Muslim societies is a barrier to development of human rights education paying attention to which seems necessary in finding proper and appropriate means and mechanisms for human rights education in these societies based on their capacities. These capacities can be examined in two categories. The first category is the general capacity of Muslim communities, including non-governmental organizations, as well as academic legal clinics and the clinical education method of human rights that is recognized as an effective method to the core elements of human rights education in accordance with international documents in all societies. The second category is the specific capacities of Muslim communities which can considerably contribute to the promotion of human rights through localization of human rights clinical education, resolving the challenges meeting the university law clinics and increasing their effectiveness regarding human rights education in these societies. The present paper, through describing and analyzing mainly-library-based data, aims to investigate the quality of the function of general capacities and tries to identify and present the specific ones such as Waqf institution, mosques and the educational role of Muslim clerics.

Economic Loss is a term in common law that is used in cases of imposition of expenses on the claimant or loss of his/her expected profit and is placed against physical injury or damage to his/her tangible property. In common law, to express this kind of damage in breach of contract, the terms "reliance loss" and "expectation loss" are prevalent. In the tort law of common law, "economic loss" arising from intentional acts principally is compensable providing the establishment of some conditions, but in cases of "negligence", compensation for "economic loss" is conditional upon the claimant having suffered physical injury or physical damage to his/her tangible property of the claimant which is called Consequential Economic Loss. Otherwise, such damage is called "pure economic loss" and it is not compensated in principal. The analogous notion of "economic loss" in Iranian law which could be the basis for a comparative study is the jurisprudential term of "loss of profit". In this article, through a descriptive-analytic method, the common law notion of "economic loss" is introduced and the limitations and conditions for compensation for such damage are expressed. In addition to comparing this concept with "loss of profit", the position of Iranian laws and various jurisprudential opinions in this regard would be analyzed.

Trust possession (Yade Amani) and the liability arising from encroachment and wastage and the lawyers obligation in observing the trust and expedience of the client and the status of the contracts that the lawyer has signed outside of the scope of his/her powers have been dealt with in Islamic jurisprudence. However, there is a little material regarding other obligations or the contractual civil liability arising from the breach of obligations or contractual liability arising from the delay in the fulfillment of obligations. While there is a third party presence in the attorney contract and sometimes despite the relativity of contracts the scope of the obligations extends to third parties and breach of any of these obligations fulfill the liability resulting from personal and other's act and third party. Therefore, the client not the only has contractual liability resulted from personal act toward the attorney or the other party of the contract, but sometimes contractually or tortiously liability is liable due to another’ s act as well. Correspondingly, the lawyer has contractual liability arising from personnel act toward client and sometimes is liable toward the client or other individuals for other's act that is examined through a comparison with French law.