CIVIL JURISPRUDENCE DOCTRINES
Year:2021 | Volume:13 | Issue:23|Papers Count:16

From the point of view that the crisis of bankruptcy entails to consider all economic and managerial aspects it should be managed far from the boundaries of the private law and bankruptcy law. For the bankruptcy private laws in most cases have been legislated in order to preserve the rights of creditors and less it refers to support business activities. However, the legal systems according to their priorities have dealt with the matter and create regulations. The theory of Islamic economic law for directing this crisis can be assessed based on the hisbah (Arabic: حسبه accountability) and analyzed its functions in this regard. In the present paper for evaluating the inclusion of bankruptcy under the hisbah matters, it has studied the sides of this issue and besides, the efficiency of hisbah matters for controlling the crisis of bankruptcy it presents its challenges. With respect to this, it seems that in Islamic economic law far from preserving the private right of creditors, it can be imagined mechanisms for company (firm)-centric and supporting debtor through the hisbah way with considering its characteristics, isolation from the pro-creditor approach, which have a significant impact on reviving the bankrupted and keeping the companies. In other words, in Islamic law in proportion to have common public-private validity, hisbah matters have several tools for managing the crisis of bankruptcy. The alternative and protective methods such as borrowing, dispute resolution, qardh al-hasan (Arabic: القرض الحسن lending with no interest), Bayt al-Mal (Arabic: بیت المال literally: house of money, meaning: the “ fiscus” or “ treasury” of the Muslim government), mortgage, collateral-surety-, respite or assignment of contract are of these tools.

The function and the concept of law in trials and adjudication has ambiguity. Based on the soul and the evolutionary process of law, the intent of Sharia (Arabic: شرع Islamic law) in the current rules is an independent concept from law, public order and good morality (desired virtuous values) but sometimes this term in the rules has not been used right (accurate). From functioning aspect, after realizing the illicitness of the claim (case), it should not be trusted in the appearance of law i. e. Article 89 of civil procedure code of Iran indicating issuing the abatement. Also referring to the Islamic law from both parties, court of appeal and supreme court of Iran in appealing to the initial judgment limits to the decisions that issuing of the initial decision depends on the silence of law and with referring to Islamic law has been issued. The ambiguity originated from the concept of Sharia (شرع) in the rules, it is possible to study in the area of the adjudication. In this paper it has been surveyed the duty of the adjudicator to the Islamic law and the duty of the court on adjudicating the appeal against the decision of the court (dispute) from the point of view of being in contrast to the Islamic law principles.

The physician’ s obligation to warn or duty to inform individuals other than his or her patient who are at risk of danger from the patients has a vital role to protect and improve the public’ s health. This obligation sometimes without disclosure of patients’ names in cases like dangerous disease outbreaks is entrusted to the upstream institutions such as the Ministry of Health and Medical Education (MOHME). The obligation to warn which includes disclosure of patients’ names firstly was mentioned in Tarasoff case. Its law has provided the circumstances of this obligation which is counted an exception to the principle of secrecy and confidentiality in medical law. In spite of its importance, the law of Iran does not have an explicit rule. But besides the implicit indications in some regulations based on Islamic jurisprudential maxims such as the mandatory of preserving Muslim’ s life, it can be accepted the existence of this obligatory in general for the physician. Moreover this obligation provides the required interests which are emphasized by Islamic law such as preserving life and property. therefore even in the situation of the refusal and doubt in the indication of primary evidences to such obligation, the Islamic governor (ruler) to provide personal and public interests can assign the physician this obligation with the determined provisions and regulations. Of course the obligation of warning being an exception to the principle of secrecy and confidentiality, specifying its circumstances and conditions such as determining illnesses which creates obligation and determining the non-patients who are beneficiaries with applying circumstances like the circumstance of identifiable (identified) third parties Is vital.

The possibility or impossibility of marrying with the adapted child is one of the argumentative problems in the legal system of Iran and lots of other countries. Contrary to other Islamic countries, under the effect of France law, Tunisia has accepted family relationship originated from adapted and its effects such as the prohibition of marriage with the adoptive parents. meanwhile criticizing and studying the opinions of Islam scholars and the law of France and Tunisia, the author with descriptive-analytical method based on the criterion of the Permissibility of marriage with adapted child believes that Islamic jurisprudence in this issue is more advanced than the other legal systems and has set the issues to the intent and free will of the adapted and the adoptive collectively and has respected to their free will which is of human rights whereas the determined legal systems have legalized contrary to this obvious subject. The present analysis as a theory release the belief-supposition-of Islamic well-known jurists from many problems and also it can be put forward in the form of theory building.

The historical studies shows that Imamiyah jurists have not thought that there is no difference between mortgage (Arabic: رهن rahn) and pawn but they have defined rahn as loan collateral. But with the consideration of the limits of mortgage contract in our legal system and the impossibility of applying rahn for some assets or promises, some authors have tried by presenting new theories to deal with these limits. One of these theories is the dualities of mortgage contract and pledge. If it is possible to confirm two characteristics “ having particular name and specific conditions and decrees” in law for the agreement of the pledge it can be resulted that the mentioned contract is of nominate contracts. The study of the present laws show that the conclusion of the agreement in the form of the mortgage contract is not possible in most cases because of the absence of one of conditions. The legislator has used the term ” وثیقه“ (pawn). These rules can be applied from two sides: first they prove that it has legal base and it has used several times in different rules. Second the legislator has used the term ” وثیقه“ (pawn) in the cases which one of the provisions of the conclusion of the agreement is not and he has refused to apply the term ” رهن“ (mortgage) through this, he has created a modern foundation (establishment) in the legal system.

Shia fiqh in the situation to respond individual needs and in meaningful distance from social notion has been developed and grown. The book of Ijtihad (Arabic: اجتهاد meaning: use of reason to arrive at a knowledge of truth in religious matters) and taqlid (Arabic: تقلید meaning: “ following” or “ imitation” of a legal expert by a nonexpert) also is not an exception to this rule. Since in some subjects which are analyzed from the point of the personal matters in confronting with social problems, it has come to theoretical deadlock and some of these problems are not resolved through personal fiqh method. One of these important cases is to establish statutes in accordance with Islam decrees. Law enactment not only has had a vital importance in old political philosophy but also is counted the heart of modern democracies in contemporary periods. There are problems and issues in this field. One of these issues is “ Standard Fatwa in legislation” i. e. if there is a conflict between fatwas (Arabic: فتوی meaning: authoritative legal opinions given by Islamic jurists) with which of them the Islamization of statutes is judged the fatwa of governing, most learned jurists. the jurists of the Guardian Council, efficient fatwa, compliance with precaution, well-known fatwa. After presenting these theories and important problems which these theories include the present paper shows discordance between two aspects “ personal aspect and social aspect” for referring ahkam, from one side and from the other side it has stated the theory of fatwa Compliance with required interests and has provided some theoretical required backgrounds. The diminution (lowering) of the requirements of the special fatwa in Law enactment to the cases of realizing mandatory interests and explain how the allowance in act according to fatwa in some regulations related to the personal affairs is of the conceptual bases of this theory.

In the law of Iran, there is a general rule provides that indirect damage is not recoverable. However, exceptionally, liability rights today seems likely to take into account some indirect damages to be recoverable. In English law, it is compensable if the indirect loss is foreseeable by both of the parties. The loss will be recoverable if it is in the contemplation of the parties. There are theories which have proved over time in common law (Jus commune or ius commune) and formed the bases of indirect loss. Theories of efficient breach, expectation interest, reliance interest, restitution and full compensation principle each of them somehow has justified the compensation for indirect loss in England. In the law of Iran, although it is constantly emphasized on the necessity of being losses direct but there are strict legal and Islamic jurisprudential maxims (al-qawā ʿ id al-fiqhī yah) that indirect contractual and non-contractual damages can be compensated by them exceptionally. Causation, no harm, sanctity, reprisal and intellectuals’ basis are of Islamic maxims which can be known as the base for the recovery of indirect damages.

The growth and development of societies and growth in human needs with development of communication which has resulted the genesis of a specific form of financial and commercial activities which do not face the preceding limitations and with a minimum funds provides to access the maxim profit from all over the world. CFD or a contract for differences is a transaction on the rising and falling of the asset’ s value without delivery or transfer of the owning the underlying asset. This underlying asset can be stock indices, stocks or shares, commodities, bond. One of the most important and most basic is CFD trading on silver, gold, oil and gas. It is obvious that no legal and jurisprudential study has been conducted over this new trade. it will follow ambiguities such as usury, gamble and legal problems like ambiguity in the nature and the type of the contract specially our legal system has been codified based on Imamiyah fiqh. In this research firstly the position of CFD (contract for difference) on commodities have been considered. then it presents a appropriate legal form and strategies to overcome these legal and share'i (Arabic: شرعی) problems. With regard to the civil code and the possibility of the sacred lawgiver in concern to the principle of freedom of contract which has accepted. If the nature of these contracts is interpreted in the form of sulh contract. Not only it resolves the problem of inconsistency with the determined contracts but also the Islamic legal ambiguity have not been created at all.

Testimony is one of the evidences for proving a case to court which has been accepted by all legal systems. Testifying is sometimes between Muslims against each others, Muslims against unbelievers, unbelievers against Muslims and unbelievers against unbelievers. According to the Islamic jurisprudential proofs, Muslim’ s testimony in relation to unbelievers is accepted but unbeliever’ s testimony in relation to Muslims is unaccepted in the civil cases based on the Quranic and hadith proofs and evidences. Therefore, in Imamiyah fiqh, it is rejected the generality of unbeliever’ s testimony in legal matters against or on behalf of Muslims and according to the evidences it is not valid. But unbeliever’ s testimony in relation to Muslim in the case of wills (testaments) is proved by the Quranic and hadith proofs. Islamic jurists with adducing to the mentioned proofs have only accepted unbeliever’ s testimony in Muslims’ wills. But adducing the generality of some of the Quran verses is vitiated and also the universality of which has been expressed by some hadiths the study concludes that unbelievers with conditions not only in wills but also in some other cases can testify. Therefore, in this note with studying and criticizing the proofs of non-acceptance of unbeliever’ s testimony in cases other than wills and the proofs of permissibility of the acceptance of dhimmī s’ testimony (Arabic: ذمی literally: protected people) in the issue of wills, it has examined and analyzed the possibility of generalizing unbelievers testimony to cases other than will and at the end with using the reason resulted from Islamic traditions, the definite (certain) tanqih al-manat (to extract the absolute or certain reason of hukm and extend to the similar cases) and a fortiori analog-qiyā s-(Arabic: قیاس اولویت ) with analytic-inferring method, it has been reasoned the possibility of generality out.

One of the debated issues among Islamic jurists is about divorce whether divorce for the payment of compensation by wife to her husband is concluded two types of divorce: khul and mubarrat or besides them it is possible to consider another divorce which is called divorce for compensation or Fidyah (Arabic: الفدیه meaning: expiation) divorce. The well-known Islamic jurists believe that with regard to some explicit statements within the noble Quran and hadiths, paying fidyah (Arabic: الفدیه ) to husband to divorce his wife is permissible in the condition of disliking (khula and mubarrat) and in the circumstance of the absence of hate, they have issued Islamic ordinance that divorce is not permissible and it is revocable (raj'i). But according to the unwell-known jurists, it seems that within the revealed Quran verses and hadiths hate is not the necessary condition for divorce in compensation by fidya. But the only necessity for divorce in the payment of compensation ('iwad) is the fear of violating the divine law boundaries between spouses. This case includes hate and others. It is possible to occur the violation of the divine law boundaries without hate and to accept divorce for the payment of compensation ('iwad). Therefore, with paying attention to the lack of obstacle in Islamic law and law and the generalities such as sulh contract it can be considered the validity of such divorce.

Waqf is of the juridical acts after its establishment, the relation between founder of waqf (Arabic: واقف waqif) with the Waqf asset (Arabic: موقوف mawquf) is dissociated and there is no real right for waqif in relation to the waqf asset. Since there has been stated a question if waqif can stipulate a condition within the waqf that he can add new persons as beneficiaries of waqf or not in future. If the contract is absolute, mostly, most of the researchers and Islamic jurists believe that for the interruption the relation between waqif with the waqf asset (mawquf), there is not the possibility of the inclusion and adding new persons to the beneficiaries of waqf. But there is disagreement between scholars if it is stipulated the inclusions of new persons to the beneficiaries of waqf. Some scholars believes that this clause is void therefore it is impossible to add new persons, in contrast to them, some other scholars believe that this condition is valid and the exigency of the believers must fulfill their conditions ” المومنون عند شروطهم“ makes waqif have this right. In this paper based on the analytic-descriptive method, this outcome has been taken that if the content of the provision is the authority of waqif to possess the waqf asset and to include everyone to the beneficiaries of waqf he desires, this provision is void.

The civil law of Iran, considering jurisprudence, has predicted sanctions to prevent the breach of contractual liabilities. These sanctions are divided into two kinds of legal and contractual. Civil law doctrine of Iran has identified lien as one of the legal sanctions to prevent the breach of contractual liabilities. However, the title “ contractual liabilities” has the primitive renunciation to financial liabilities, the legislator has identified the mentioned right as a guarantee mean in family institution. The main question of the present study is whether lien could play its role as a guarantee mean in family institution or not. By analyzing the linen characteristics, particularly in insolvency of husband and determining some of these characteristics of the mentioned right in recent condition, the result would be obtained that at least we can not consider this sanction in family if the husband is insolvent, however, there are doubts about the basis of this sanction in family institution. These doubts will be more severe by studying the main factors of desirable sanction and the negative consequences of “ linen” in family, since it has some consequences in contrary to the family, so that this holy institution would be leaded to the lesion transaction which renders the family bases unsteady. This problem aggravates when the husband is insolvent. The issued question of this study has been deducted by the assistance of legal-jurisprudential logical analysis.

The Islamic legal maxim ” الحرام لا یحرم الحلال“ the prohibited (Arabic: حرام unlawful) does not get the preceding permitted (Arabic: حلال lawful) is of the Islamic legal maxims which is on the basis of Particular injunction or text (nass) is related to the marriage book which has no fault from the point of its sanad (the chains of the narrator) but from the point of the content, many discussions have been propounded about the terms ” حلال“ and ” حرام“ (lawful and unlawful) according to the Islamic law. Majority of Imamiyah jurists believe that ” حلال“ lawful in the maxim includes both actual halal and potential halal. Also the well-known jurists believe that ” حرام“ unlawful which is indicated in the maxim are five instances: adultery, male homosexuality, illegal touching, unlawful gazing and relations. Since the opinions of Islamic jurists in the compliance or non-compliance of the maxim with adultery (Arabic: زنا Zinā ) are dissimilar. Therefore, the present paper with descriptive-analytic method has studied the mentioned issues and has followed this outcome that if the act of Zina occurs after the lawful marriage contract the act of adulterer and adulteress and also a married woman who commits zina Even she insists on it for this determined maxim and the other proofs has no effect on the lawful contract (Arabic: عقد aqd) of the married woman (having sexual relations or not having with). Also is zina is before the marriage contract and the case of zina being potential halal this maxim is effective. This is the outcome which is resulted from Article 1055 of the civil code of Iran.

The ownership of a vehicle can be proved by different proofs. The contradiction between these proofs is possible and probable. The contradiction between formal or conventional instrument and authorized conjectural proofs (ammarat) or with each other are types of these contradictions. In the contradiction between documents and authorized conjectural proofs (ownership amara) in the supposition of the simultaneousness, with the Corroborative evidences such as the document proof and negative evidences such as the inconsistency between the opposite supposition with the maxims, the document takes priority over amara. In the supposition of the different times some prefer amara because of its absolute validity. The preference of the document in this supposition is supported by the proofs of the previous mentioned supposition. The debate and argument about the evidences of the vehicle green card it is resulted that the part (the part which proves the owner of the vehicle plate) which police legally and exclusively have the authorization to establish it has been believed that the formal document and the other part (the part shows the vehicle ownership) it is not believed the formal instrument. But pursuant to the Islamic prevalent maxim-as the basis for the validation of ammarat-and because the ammarat are not restricted to the mentioned and known ones it is thought that green card is amara. It is a strong and logical amara which owes its power and effectiveness to the most cases and the behavior of most contract parties and it indicates the transfer of the vehicle ownership. Of course like other evidences and amara, the way to prove the opposing side is not blocked.