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Journal: 

PRIVATE LAW STUDIES

Issue Info: 
  • Year: 

    2022
  • Volume: 

    52
  • Issue: 

    2
  • Pages: 

    235-255
Measures: 
  • Citations: 

    0
  • Views: 

    185
  • Downloads: 

    39
Abstract: 

The term in the mortgage is presented in two formats,one is due to the deferred debt and the other is making the mortgage contract temporal for the absolute debt. Although the jurists have considered the first one to be correct, this was not, in the strict sense of the word, making mortgage contract temporal, and it is naturally out of the question, unlike the second form, which is invalidated by consensus. Of course, in jurisprudence and civil rights, in addition to consensus, other arguments have been presented to invalidate this. Among them are the requirement of a mortgage contract, the result of its durability and subordination, the requirement of the literal meaning of the mortgage, and similar cases. In this search, we are looking for an answer to this question: Is making the mortgage contract temporal, correct and possible? For example, can money be mortgaged for two years? Is there a legal basis for the time limit in the debt document? The civil law is silent on this matter, but some jurists have clearly considered the non-limitation of the term as one of the conditions for the validity of the mortgage. The result of the discussion is that if the condition of making temporal is considered invalid due to the opposition to the requirements of the mortgage contract, then the claimant's guarantee will be lost and it will become a normal demand. Therefore, considering the silence of the civil law and the conflicting nature of some issues in jurisprudence and the lack of a research background on this issue, the necessity of the present research becomes clear, in which, by focusing on the reliable sources of Imami law with the help of the library, the analysis of making mortgage temporal will be maid, in the form of an additional condition. Considering the silence of the civil law in this matter, the present article, in a descriptive and analytical method, after examining the history of discussions in the works of jurists, criticizes each of the arguments presented and after making some considerations, finally, taking into account the requirements of the applications, the free will surrounding the contract, the principle of correctness, attention to the purpose of the mortgage (creating confidence in the mortgagor and motivating the payment of debt in the mortgagor) and attention to the rational and case benefits of making contract temporal and legal logic, reaches the conclusion that the agreement on making temporal is correct and it does not conflict with its inherent qualities. At the same time, the alleged consensus on the invalidity of the temporary mortgage is not without controversy, and does not hold up against the evidence of the correctness of making temporal. In general, it seems that the presumption of invalidity or at least doubt in the correctness of making mortgage temporal, in the Islamic and civil law, has led the regulators of these contracts to make the whole contract temporal, in such a way that the interests of the some bank contracts are secured, from the supposed problem of the timing. In fact, with this action, while the bank enjoys the rational benefits of mortgage timing, they also distance themselves from this possible problem. Finally, it should be said that the timing of the mortgage and its inclusion in the official documents, in Iran's legal system, not only does not face any obstacle, but considering its rational benefits, it is also compatible with the legal logic and customs of the society. On the other hand, the need to amend the laws and regulations of the legal system in order to make it more efficient requires that every research should include a section for presenting suggestions to the legislator. Based on this, it is suggested that, like the amendments made in some articles of the civil law, in the years after its approval, in order to clear any doubts, the correctness of the timing of the mortgage should also be included in the text of the civil law, with the following content: "Article 794 bis (recommended): The mortgage contract can be long-term and the condition of the mortgage being long-term is not void. In this case, if the considered time comes before the payment of the debt, it is like that from then on, until the payment of the debt, the mortgage guarantee is not considered and the debt is free of mortgage. In this case, the agreement on making temporal, depending on the case, will be interpreted in line with the conditional will to guarantee religion and its belongings and related matters as much as possible. In any case, the conditional defendant can request the mortgage after fulfilling all his obligations.

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Author(s): 

KALLEBERG A.L.

Issue Info: 
  • Year: 

    2000
  • Volume: 

    26
  • Issue: 

    -
  • Pages: 

    341-365
Measures: 
  • Citations: 

    1
  • Views: 

    154
  • Downloads: 

    0
Keywords: 
Abstract: 

Yearly Impact: مرکز اطلاعات علمی Scientific Information Database (SID) - Trusted Source for Research and Academic Resources

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Issue Info: 
  • Year: 

    2022
  • Volume: 

    26
  • Issue: 

    75
  • Pages: 

    211-233
Measures: 
  • Citations: 

    0
  • Views: 

    395
  • Downloads: 

    0
Abstract: 

In Shia jurisprudence and consequently in the civil law of the Islamic Republic of Iran, temporary marriage is recognized as one of the types of marriage. The wife's sexual rights and the possibility of the husband leaving the marital duties (Noshuz) in this type of marriage are the important and challenging issues about temporary marriage. This article with a descriptive and analytical method tries to answer these following related questions: Is the marital law such as the right to cohabitation and intimacy fixed or not for the temporary wife? If yes, what is the effect of the husband' refusal to perform the marital duty of the wife and how she can he obtain her rights? Family law in Iran is silent on these issues jurisprudential views on it are also different. The research findings show that the right to intimacy is fixed for a temporary wife. Also, in a long-term marriage, the wife has the right to love and affection. As a result, the husband's Noshuz in temporary contract is achievable. If the husband refuses to perform the marital duties of the temporary wife, at the request of the wife, the court first obliges the husband and then forces him to grant the term of contract.

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Author(s): 

KAZEMI MAHMOUD

Journal: 

LEGAL RESEARCH

Issue Info: 
  • Year: 

    2022
  • Volume: 

    25
  • Issue: 

    97
  • Pages: 

    95-117
Measures: 
  • Citations: 

    0
  • Views: 

    350
  • Downloads: 

    0
Abstract: 

In commutative contracts, the actual exchange of two considerations is basic to contract and compulsory delivery of subject matter of contract and compulsory performance of obligations arising therefrom is also among the rules of the synallagmatic contracts for mutual exchange. Also, any negligence in the performance of the contractual obligation or the supervening impossibility of performance subsequent to the formation affects the status of the contract. In the case where an external factor renders the performance of one of two reciprocal obligations impossible, if such impossibility is permanent, the contract becomes dissolved and if it is of a temporary nature, it shall give the obligee the right to rescind the contract known as the option of the impossibility of delivery. However, in case the obligee does not wish to terminate the contract the question is that is he entitled to withhold performance of his own obligation and to bring the performance of the contract into suspension? Iranian Civil Code has not expressly mentioned this rule, but such a right can be deduced from a number of statutes as well as the general principles of commutative contracts. Furthermore, in the course of suspension, the obligee is not liable for the non-performance or delay in performance of the obligation. Suspension of the performance of the contract is similar to right of lien in some respects. Our aim in this article is to review the right of suspension of the contract and then to substantiate the existence of this right under Iranian Law.

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Issue Info: 
  • Year: 

    2018
  • Volume: 

    5
  • Issue: 

    2 (16)
  • Pages: 

    27-54
Measures: 
  • Citations: 

    0
  • Views: 

    955
  • Downloads: 

    0
Abstract: 

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.

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Author(s): 

MAYO JAMES

Issue Info: 
  • Year: 

    2009
  • Volume: 

    26
  • Issue: 

    2
  • Pages: 

    0-0
Measures: 
  • Citations: 

    1
  • Views: 

    155
  • Downloads: 

    0
Keywords: 
Abstract: 

Yearly Impact: مرکز اطلاعات علمی Scientific Information Database (SID) - Trusted Source for Research and Academic Resources

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Author(s): 

Vakili Moghadam Mohammad Hosein

Issue Info: 
  • Year: 

    2022
  • Volume: 

    9
  • Issue: 

    4
  • Pages: 

    303-330
Measures: 
  • Citations: 

    0
  • Views: 

    53
  • Downloads: 

    8
Abstract: 

Legal agreements in time-dependent matters are made in the form of a Successive Contract that has a time-oriented function. Consistent with this description, these contracts have significant substantive and procedural distinctions which help an independent type of contracts emerge based on legal analyses and justifications. The Iranian Civil Code does not specify these contracts in particular; however, due to the prevalence of several instances of successive contracts as specific and the need to analyze their legal criteria, a comprehensive study of these contracts seems necessary. Drawing on the relevant literature and recruiting a descriptive-analytical design, the present study seeks to (a) analyze the precise nature of the successive contracts and the role of time in them and (b) explain their most significant legal distinctions. Findings suggest that the necessity of time-passage for the fulfilment of the subject of a successive contract is the very distinctive substantive characteristic of such contracts. The need for normalizing successive contracts and highlighting their distinctions with instant contracts is then justifiable. The criterion would be helpful in determining the instances of successive contracts- whether known or unknown.

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Issue Info: 
  • Year: 

    2023
  • Volume: 

    27
  • Issue: 

    77
  • Pages: 

    141-163
Measures: 
  • Citations: 

    0
  • Views: 

    341
  • Downloads: 

    0
Abstract: 

There is no doubt about the legitimacy of temporary marriage in Shiite jurisprudence. This kind of marriage is recognized in Iran’, s civil law and family support law, and some of its ruls is indicated. But there are some ambiguities about some of the issues such as the juridical effects of the wife's disobedience. Disobedience of wife in permanent marriage could lead to loss of alimony right entitled to her but in temporary marriage wife not entitled to alimony right. So, the important question is proposed here: what is the effect of a wife’, s disobedience on her rights, and in other words, what is the executive guarantee of the husband’, s right to submission in temporary marriage? There is no commentary about this issue in Civil Law, while this issue is important and should be investigated. In this paper, this issue is studied through descriptive and analytical methods from a jurisprudential perspective. The findings of the study are shown that if the divorced wife refuses to obey without a valid excuse, her disobedience would be fulfilled. On other hand, disobedience of the wife in temporary marriage leads to nulling her right of marriage portion or dowry, and the husband could deduct from the dowry considering proportion to the period of disobedience, and if the husband had paid the full dowry, he should demand its return in the same proportion through the court.

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Issue Info: 
  • Year: 

    2021
  • Volume: 

    39
  • Issue: 

    172
  • Pages: 

    120-135
Measures: 
  • Citations: 

    0
  • Views: 

    1078
  • Downloads: 

    0
Abstract: 

Providing temporary shelter after major disasters is one of the major challenges for survivors and relief and reconstruction officials. In Iran, besides the distribution of tents, a common solution is to construct and deliver containers to the damaged areas. Following the 2017 earthquake in Kermanshah province, extensive damage was inflicted on urban and rural settlements, especially in the Dasht-e Zahab and Qasr-e-shirin districts. The high extent of the destruction, the proximity to the cold season, the rain, and the problems of living in emergency accommodation tents necessitated the acceleration of the provision of temporary housing and permanent shelter. The present article is a report of an action research project to find a different solution to this problem. Experience shows that accident survivors, especially in rural areas, provide shelter for their families by the locally available materials and technology, or the materials remained from the destroyed buildings. Aware of such a capacity, we tried to take a step towards providing temporary shelter by making maximum use of local materials and some non-local but inexpensive and affordable materials. For the first time, PVC pipes were used as the main structure of a temporary shelter. In the first phase, in December 2017, researchers visited the city of Sarpol-e Zahab and several villages in the region for six days in order to identify and evaluate the conditions of the region. Then, the design and execution of the first experimental sample of this structure called Kashaneh with dimensions of 2 × 3 meters was done in the Faculty of Architecture and Urban Planning of Shahid Beheshti University. During the execution, many points were identified and corrected, the strength of the structure was tested under gravity loading, and the structural calculations were performed using SAP2000 software. In the next step, the original sample with dimensions of 3 × 4 was built in the village of Kuik Aziz in the city of Sarpol-e Zahab. The willingness to participate among the residents and the positive feedback of the people towards the original sample indicated the success of this type of temporary shelter. Monitoring the samples, lower costs, speed of execution, participation of local labor force, ability to develop and attention to the psychological needs of the survivors in terms of similarity of the created space to a normal building, are among the advantages of this project.

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Author(s): 

AFZALI R.

Issue Info: 
  • Year: 

    2009
  • Volume: 

    6
  • Issue: 

    21
  • Pages: 

    9-32
Measures: 
  • Citations: 

    0
  • Views: 

    1479
  • Downloads: 

    0
Abstract: 

This paper is an attempt to analyze the timing or temporary proprietorship, whether legal or illegal, by legal proofs. Then it comes to this conclusion that the temporary ownership is accepted in Islamic Divine Law.It also seeks to study the timing ownership as well as its contract according to certain agreements.Later, the article proceeds to prove that this contract could be made under certain terms and agreements such as selling, reconcilliation or peace and renting. Finally, the paper verifies this contract, as a new one, while considering its legacy.

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