CIVIL JURISPRUDENCE DOCTRINES
Year:2022 | Volume:13 | Issue:24|Papers Count:14

One of the main issues in the waqf contract is the subject of the founder’ s conditions and how to implement them within the waqf contract. According to the principle of Party autonomy, the primary principle in waqf is that the founder (waqif) inserts every clause (which is not in opposition to waqf) within the waqf contract. One of clauses that are doubt about their validity and annulment (voidance) is the provision to pay off the debts and expenses of the founder of waqf from the profits of the Waqf Asset. In reality the question is this if it is possible a person establishes the waqf of properties and meanwhile stipulating within the waqf contract that the expenses and debts of him are paid off from the profits of the waqf asset. There are different opinions among the Islamic jurists and law scholars. Some of the Islamic jurists and law scholars believe that it is impossible for the founder of waqf to profit from his waqf and they say in this case both waqf contract and clause are void but some others believe that the waqf contract is valid but the clause is void. With applying the analytic-descriptive method and utilizing the library method, it is drawn conclusion from the paper that both waqf and clause is valid and there is no difference between waqf created for public and waqf created for special purpose and even it seems that the profits of founder from his waqf has no disagreement with the concept of habs (Arabic: حبس literally means to prevent, restrain) of the property and applying its profits to others which has been presented in Islamic texts and it can be said it is permissible (legal) by Islamic law. Because such provision is not in opposition to the nature of the contract and more over this act is in harmony with the soul of waqf and the holy Islamic law giver’ s taste because constantly He emphasizes on the growth and facility (ease) of waqf. From the other side with accepting and validity of such provision, the founders with worry about their future life can establish the waqf of some of their properties and meanwhile not being worry about the expenses of their future life and their families and also their debts.

Ahmad Taji (Assistant professor at Islamic Azad University of Neyshā bū r) It should be stated that the enforcement of the order is the ultimate goal of the process of procedure but the governing rules state that the condition for enforcing judgment is the certainty of the decision or verdict and it has not been considered a system for the provisional execution in the statutory law or statute law except in specific cases. While this institute previously in the article 191 of the civil procedural law enacted 25/06/1318 and based on the origination of this law which is adopted from the law of France had been permitted by the legislature. In this paper with analytic-descriptive method, firstly speeding up in the execution of judgments has been pronounced then according to its importance, the provisional execution has been surveyed. It is going to prove that the provisional execution of judgment has been an appropriate strategy to vindicate (demonstrate) and speeding up in judicial proceedings has an Islamic jurisprudential record and there are hadiths in fiqh that indicate speeding up and not putting off in the stage of adjudication that it can be with the unity criterion a proof for the legality of the provisional execution in cases that the irrevocable damage is imagined while it is basically in fiqh, the adjudication is made within one step and the verdicts (decisions) are final (absolute) and with studying instances of the provisional execution in the present law, it is answered to this question that with induction in instances it is impossible to achieve to a common principle and an adopted (extracted) judgment. Therefore, the omission of the institution of the provisional execution of judgment from the code of civil procedure is an effective fault and there is necessary the legislature (law maker) to legislate it again.

The main reason of the financial crisises (failures) and credit institutions fails to fulfil their obligations. The ancient system strategy for overcoming this crisis is to use bankruptcy process. Today, the legal thoughts tend toward this to throw away the normal system of bankruptcy for preventing the exacerbation of the financial crises and to think the social, economic necessities to get the highest efficiency by the less expenditure. The financial resolution system has planned different tools to maintain the financial stability of banks and has allowed to early intervention of the supervisor authorities. Also, in the situation of failure to recovery, the deposit guarantee provides the assurance of the depositors. From the other side, it should be considered other legal regulation such as justice and fairness in insolvency and the Volcker Rule. Therefore, in this note we are going to identify this mentioned system and draw the weaknesses and strengths and to accord with the comprehensive banking plan of Islamic Republic of Iran.

In the legal doctrine, it has been stated different criteria for distinguishing default rules from mandatory ones. But sometimes it is possible to be created doubt in the nature of some legal principles from the point of being default or mandatory. This causes some important questions in this area such as: in the legal system of Iran what the adducible principle is in these cases. Can it be said that with citing on the article 10 of the civil code the accepted (standard) rule is the complementarity of the legal rule? There is disagreement between law scholars. With considering the principle of absoluteness (itlaq). Some have believed that the mandatory of legal rules is principal. With paying attention to Article 10 of civil code, some others have put forward the complementarity of the legal rules and some others select the theory of being relative and believe that in this circumstance instead of generality it should be considered experience and with investigating in the Law decrees and through investigation it is understood that in every case what principle the legislature has settled. Some has settled the opinion of the judge is the criterion for validity. There are two main standards in this ground in the law of Egypt. The first is paying attention to the sound (concept) of the legal articles. Secondly relying on the concept of public order and ethics that the recognition of the judge in this issue is the final criterion. What achieves from studying and examination of the jurisprudential and legal sources and the regulation of the civil code in this ground is in Iran’ s legal system the principle is complementarity of the legal rules and the mandatory of legal rules is an exception and it is contrary to the rule. The indication of this claim in addition to Article 10 of the civil code is the basics of human rights and the principle of the validity included in the Article 223 of the civil code.

Most law scholars and well-known Islamic jurists consider that the fudhuli (unauthorized) regulations are of the the general rules of the agreements (contracts) and have generalized (spread) it to all types of the contracts. This broadness causes that some law scholars think that some fudhuli (unauthorized) rulings is in conflict with the public order. In contrast in the law of England as an excuse to maintain public order there are exceptions to the rule “ the impossibility of transferring of title by the unauthorized person (a person has no ownership right)” and in some case the transfer of another person’ s property is effective. Moreover, in the law of this country to facilitate the business affairs, the transaction of the agent acting without or outside his authority or the transaction of any person who pretends (claims) as an agent are effective. The disagreement between attitudes about efficiency of the legislation about the transfer of another person’ s property originates from the difference of basics of “ the transaction (sale) of another person’ s property” in these two legal systems. In this paper with differentiating between the fudhuli (unauthorized) transactions of “ mora’ a” (meaning in the sale there is a right for the third person and the efficiency of the transaction relating to fulfil his right) and “ moquf” (meaning ite efficiency relates to the consent of the true owner), it will be revealed that ineffectiveness of the recent transactions has been the theory “ assigning the contract of sale to the true owner” and in the law of England the transaction of another person’ s property is established in proportion to the ruling pursuant to the basics “ agency resulting from ratification” and the Contract management (It’ s a term which is used in the law of Iran and not explicitly in the law of England meaning: Contracting in situation that it does not conform to the accepted criteria (rules) by the legislature but the legislature for different social reasons is not going to announce its annulment).

One of the jurisprudential challengeable issues is the problem of the requirement of tanjiz (Arabic: تنجیز being unconditionally operational) in the Islamic contracts and according to the opinion of some Islamic jurists, there is an ijma' (Arabic: اجماع consensus among Islamic Shia jurists) on the annulment of the taʻ lī q (Arabic: تعلیق conditional) contract. One of the important and adaptable contracts is the contract of ḍ amā n (Arabic: ضمان liability) that according to the most of Islamic Shia jurists the mentioned ijma is in current and taʻ lī qi liability is void. From the other side, some other jurists with the criticism of the proofs of the voidance of taʻ lī q and also with adducing to the general evidences of the fulfilment of the contract oppose the decree of the annulment. In their opinion, it has been documented ijma (Arabic: اجماع مدرکی) and the main reason for its annulment (voidance) is the rational refusal of taʻ lī q in contracts but different examples of the violation in fiqh is a proof not to accept this rational demonstration and also the validity of the title “ mutual obligation or liability” for the inclusion of the general proofs of the fulfilment of contract is enough and taʻ lī qi (conditional) liability has such feature. It seems that with observing the different opinions and their reasons, the arguments of the invalidity of taʻ lī qi (conditional) liability do not have enough strength and it can be accepted the validity of it. This ordinance utilizes in the regulation and revision of Articles 691, 699 and 700 of the civil code (which indicate the voidance of taʻ lī qi liability) and through this way the insurance contract as one of its instances can be corrected.

Does the violation of the Joint Comprehensive Plan of Action (JCPOA) because of withdrawing or claiming of violation and subsequently to implement sanctions again cause to the exemption or suspension of oil industry in upstream area? It is a disputable subject that if the exercising of sanctions are instances of force majeure or it is counted of the difficulty of practicing the agreement. The main provision for occurring the force majeure is to be the happening foreseeable and to be uncontrollable. Pursuant to the content of the paragraph 14 and 15 of 2231 resolution of the UN Security Council, the applied sanction is effective to the contracts signed after the date of sanction. The occurrence of sanction cannot merely result the happening of force majeure because if the sanction is predictable, it cannot be of the instances of the force majeure. In this circumstance it can be said that the sanction can be considered of instances of the difficulty of the implementation of the agreement. In Articles 227 and 229 frustrations of contract has been mentioned and in the law of Iran it is accepted. But what has been stated under Articles 227 and 229 merely observing frustration of contract (refers to a particular way in which contractual obligations can be discharged) subsequently it will be the material damage of the subject of responsibility which the force majeure makes it occur which in the oil contract the material damage has not happened because this kind of the oil contracts is ongoing. For this reason in the recent amendment (the regulations observing the conclusion and performance of oil agreements) it has been explicitly stated that it should be observed the paragraphs 14 and 15 of 2231 resolution in the situation of drawing up agreement (contract) this subject indicates that it is not any more considered as one of instances of force majeure in the upstream oil agreements. Therefore, it is necessary to observe sanction as of instances of difficulty to perform the agreements that it leads to regulate the agreement.

Fudhuli (unauthorized) sale has been formed in two types: sale for himself (thief and usurper) and for the owner. The civil law with following the well-known Islamic jurists, the mentioned sale is valid (legal) but it is not effective that its obligation and validity depends on the consent of the real owner. Among this, some Islamic jurists in contrast to the famous opinion believe the voidance of fudhuli (unauthorized) sale. The findings of this note which has been adopted in the descriptive-analytic method reveal that the well-known opinion and the civil code with paying attention to the maxim “ contracts follow intentions” is debatable and also the opinion of Kashif-al-Qita who believes the validity of the sale for the unauthorized dealer and the opinion of the voidance of the fudhuli (unauthorized) sale totally is arguable. The preferred opinion is to distinguish between sale for himself (his own) and sale for the real owner. Consequently, based on the maxim “ contracts follow intentions” and hadiths and other reasons the sale of the unauthorized dealer for himself (his own) is void (illegal) bur for real (original) owner is valid (legal).

The authorization which basically causes permissibility (Arabic: اباحه) for the authorized person has an unstable nature which with the revocation of the authorizer (in the condition of the absence of inability to revoke) and in any case with one of parties’ death or hajr (Arabic: حجر meaning: the interdiction upon the incompetent person) it is ended (terminated). Whereas it is necessary in some cases that the authorization coincides with the feature of continuance and it is not simply destroyed (ruined) which causes the loss of the authorized. With examining in the Articles of the civil code of Iran and the opinions of the law and fiqh scholars this importance is revealed that the authorization is able to establish right for the authorized. The important features of this authorization are: inability of the authorizer to terminate it, the continuation of the allowed authorization even in the situation of the parties’ death or hajr (Arabic: حجر meaning: the interdiction upon the incompetent person), the capability of forceable or voluntary transfer of the established right, … The recognition of such foundationary (ta’ sisi) requires the authorization at least in cases which create right is supposed a legal act if not the legal presumption of the authorization will not go along with (will not be congruent with) the acceptance of acquiring right.

Government formation and the basis of being against the situation of anarchy (the absence of government) and from one side the separation of “ government” and “ ruler by God’ s command” and withdrawal of confronting with the situation of imperfect (incomplete) government, governance has been situated between “ right” and “ duty” . This dual enigma (mystery) impacts from one side on accepting the government by Faqih (Islamic jurist) and from the other side on possibility of the abdication and also the proposition of supervision (inspection) and answerability. The present paper examines the feasibility of the resignation of the Islamic ruler, provisions and requirements comprised this statement. The note based on the descriptive-analytic method analyzes the present issue and at last reviews “ resignation” in the form of right. Of course, the effect of the secondary situations on the limitation of this right will be considered. Certainly, this impact does not have in a way to consider the resignation as ruling (hukm). In Sunni jurisprudence and the contemporary constitutions resignation has also considered “ right” but the base of this right is different in Sunni jurisprudence and Imamayeh jurisprudence and in the contemporary constitutions the absoluteness of this right situates against the qualification of this right in Sunni jurisprudence and Imamayeh jurisprudence.

The phone subscription agreement is one of the most important contracts between the subscriber (customer) and telecommunication companies to receive the communication services that has a vital role in human life today. This paper which has been provided with analytic-descriptive, the nature of the oldest meanwhile the most important and current subscriber agreement with telecommunication means the postpaid phone subscription agreement has been examined. Based on this with analyzing the purport of this contract, it has been challenged the way of the relationship between the subscriber and telecommunication and customizing the telecommunication equipment (instruments) to it and how calculating the expenses relating to this contract, the opinions which think that the subscription agreement is inclusively leasing (Arabic: اجاره ijarah) and sale (Arabic: بیع bay') contract and it is accepted the opinion of the composite (compound) contract for determining the nature of this contract. Also for the clarification of the quality and nature of the compound contract, meanwhile accepting the Islamic traditional report about the sale of rights and interests (benefits) and stating that the inadequacy (lack) of the uncertain (brief) knowledge to the consideration for avoidance of the doubt of gharar (Arabic: غرر meaning risky transaction) in the sale of the benefits, for the solution of the doubt in the consideration in the section of the inconstant (variable) expenses of in this contract (printed in periodic bills), the title of sulh (meaning: settlement and resolution) contract is suggested and accepted. Lastly, the acceptable opinion of this research for the nature of the postpaid phone subscription agreement is a contract composed of the sale of subscription fee, the sale of the constant contact and the settlement (sulh) on interests (benefits).

Before the enactment of The Family Protection Act of Iran (1391), the agreements for the acceptance of the right of custody or to pay special privilege to other parent takes place they had not explicitly been attached to the legal ruling case. But after the enactment of the mentioned law in Article 41, it has been implicitly legitimized. For the most important factor to perform agreements is will and agreement of both parties. The principle is the party autonomy and because custody is the parents' right and responsibility. Each party can give the exercise of the right and performance of the responsibility based on these agreements to other party if it does not stipulate that the obligor or accountable person should directly implement the liability. This paper has examined the role of parents’ will on concluding agreements between parents with each other or with the third person. With observing this research, it is understood that in the law of Iran custody based on its dual nature cannot be waived or assigned but parties can representatively transfer the performance of right to an agent. Therefore, it is possible to conclude these agreements in the time of marriage or divorce, consequently, the possibility of assignment to the third party (private enterprises-organizations-, employing nurses, giving the custody of children to the social workers… ) it is in the formation of nominate contracts-defined contracts-such as leas, sulh, wakalah, ju'alah, … or in the formation of innominate contracts (Article 10 of the civil code). Because the principle of autonomy in the agreements of custody is more limited than the other contracts, Child’ s benefits as specifier (Arabic: مخصص mukasis) is constantly considered by the courts.