FEQH-E AHL-E-BAIT
Year:2013 | Volume:19 | Issue:74|Papers Count:8

This article explores the legality scope of buying and selling stocks of companies and banks. Having analyzed the nature of company, the ruling of buying and selling it stocks have been stated under three different conditions: legal person of a company, intellectual person of a company and a natural person based on jurisprudential principles.As a type of company, banks have also been analyzed based on above conditions and rulings of buying and selling its stocks have been stated with one additional point that according to author, buying and selling bonds is legal if two conditions are met; equality in transaction and exchanging purchased item and its value during transaction session.

This article is aimed at explaining details of huge sources of the mines which have been neglected so far.Khums of mines, due to their diversity and abundance, can be potentially a great support for propagation of religion and Shiite Islam. In this article, we have demonstrated that even state-owned mines are liable tokhums which has to be paid and spent underwali faqih’s supervision. Discussions about the nesab of mine [quorum] and thatkhums for mines is calculated before deducting extraction costs have been covered. In addition, we have mentioned that the fact that mines areanfal [national assets] does not conflict with the obligation ofkhums for mines and that khums of mines, whether extracted in national lands or private lands, has to be paid. The differencekhums of mines andkhums of profits accrued from businesses has also been explained and it has been proven that ifkhums of mines is paid, there is no need to paykhums of profits accrued annually.

Having examined the viewpoint about "the Influence of Shari’a’s Intentions on Documents Used in Deduction", some evidence to prove this viewpoint has also been studied. This viewpoint divides available jurisprudential thoughts and operations about the position of Shari’s intentions in deduction into five categories. After studying and analyzing these theories, the fifth one is proved which is selected by the author.This viewpoint has been previously brought up in book titled "Feqh and Intellect" and has been explained in journal of Ahlul Bayt Feqh no.41 in an article titled as "Feqh and Shari’a’s Intentions" based on this fivegroup categorization. On this basis, it has also been explained with more details in another book titled as "Feqh and Expediency". The current article has been written the book of "Feqh and Expedience" based on the explanation of this viewpoint.

Jurisprudential literature up to 5th century is categorized into four groups one of which has been called "motalaqqat" by late Ayatollah Boroojerdi. In his and some other contemporary jurisprudents’ viewpoint, earlier jurisprudents’ opinions in principles of motalaqqat may have a few scientific consequences; such as consensus or fame in principles of motalaqqatunder a few conditions may help discover infallibles’ (' a) opinion; jurisprudents’ famous opinion in principles of motalaqqat may compensate the weakness in the document of traditions as their aversion from an authentic tradition weakens it. There are at least six opinions to define and interpret principles of motalaqqat. This number of opinions indicates that there is ambiguity in the theory of "Principles of motalaqqat". This article have offered a detailed explanation of eight important characteristics for principles of motalaqqat some of which indicate the great influence their authors’ thought andijtihad have had in these works. This very fact becomes a barrier impeding those fatwas to help discover infallibles’ (‘a) words, therefore discovering infallibles’ (‘a) words from consensus or fame in principles of motalqqat which is Ayatollah Boroojerdi’s theory and those jurisprudents who share the same opinion is very difficult or even impossible.

If he transgresses or neglects, the trustee will become liable and he will no longer be able to benefit from the privileges of his trustworthiness.That is why as long as the trustee continues to transgress or neglect the trusted property, his civil punishment will be legal and justified through negation of his trusteeship effects and application of liability rules.However, what should be more precisely discussed is that if the trustee becomes remorseful and quit transgressing or neglecting the item and the trusted property as a trusted item, can his civil punishment be suspended and his trustworthiness be restored.Viewpoints of those jurisprudents who have discussed this issue can be categorized, in a traditional manner into three viewpoints: Some have preferred that his trustworthiness returns and some do not hold so. Some others have chosen the middle path and in some cases they believe that his trustworthiness returns and in some cases they believe that his trustworthiness does not return even if he has quitted transgression and negligence.In this article, analyzing presented viewpoints, an innovative categorization is presented in this field especially about the automatic return of trustworthiness to the trustee who has quitted negligence.

‘Aaqila was one of the most influential institutions before Islam and it would play a pivotal role to settle disputes and pay for its members. Islam endorsed this institution as well and kept ‘aaqila responsible to pay for some crimes such as pure accident and those crimes where the criminal escapes. Therefore, first the concept of ‘Aaqila has been explained and its members have been introduced, then it has been discussed whether‘aaqila is naturally or legally obliged to pay for the losses or to receive the compensation. It will also be mentioned that in accidental crimes both the criminal and the ‘aaqila are obliged to pay for the losses. There is a difference, however, in that where ‘aaqila exist, the criminal is not legally obliged to pay for the losses and only the ‘aaqila is legally obliged to pay.

It is necessary for both parties and their representatives to act upon the contracts signed according to law unless it is dissolved with a consent by both parties or cancelled due to a legal reason (article no.219, civil law).One of these legal reasons is "khiare gabn" [an option to cancel a contract due to excessive loss] that emerges to support the losing party and precedes the principle of the necessity [to act upon the contract] (article no.457, civil law) once the balance is disrupted betweenevazayn [considerations] and their economic value at the time of signing a dealings contract; on the condition that the losing party was unaware of the price (article no.418, civil law) and has undertaken an excessive loss (article no.416, civil law). But what does excessive loss mean? What is the criterion to identify this kind of loss? What are the advantages and disadvantages of criteria proposed in jurisprudence and positive law.Current article studies the concept of excessive loss in jurisprudents’ and jurists’ ords and evaluate advantages and disadvantages of offered criteria to clarify Iran’s lawmakers’ stance in this respect.

One of the conditions for qisas [retaliatory punishment] is revocation of father-child relationship which is reflected in article no.301 of Islamic Punishment Act derived from Shiite jurisprudence. Therefore, father is not punished byqisas for murdering his own child rather qisas is converted to blood money and ta’zir [other forms of punishment decided by judge]. Method and motive of murder does not influence this ruling.The reason that father is not punished byqisas from the Shiite viewpoint is traditions, consensus as well as common practice.However, this ruling is disputed among Sunni jurisprudents; some agree with it and some do not and some believe in detailed ruling. Since Sunni jurisprudents consider birth as criterion for this ruling, they have included child’s mother, paternal grandparents and maternal grandparents in this ruling however Shiite jurisprudents have stopped at text of traditions. Nevertheless, based on the ruling of the norm and consensus by jurisprudents, this ruling applies to paternal grandfather as well. About the ruling ofqisas for mother recent jurisprudents deal with care.