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    • Open Access Article

      1 - Role of Injustice in Jurisprudential Inference
      Seyed Alireza  Foroughi Mahdi  Mohammadi
      Issue 1 , Volume 3 , Spring_Summer 2020
      Abstract: Justice and injustice are two influential and highly debated issues in human schools of thought. One key discussion in this regard, is the role the concept of injustice can play in the procedures related to inference of the religious rules. This paper intends Full Text
      Abstract: Justice and injustice are two influential and highly debated issues in human schools of thought. One key discussion in this regard, is the role the concept of injustice can play in the procedures related to inference of the religious rules. This paper intends to clarify the role of injustice in this procedure. Based on the dictionaries, especially those belonging to the immediate post-Revelation period, injustice means “trespassing limits”. It also means the same in religious texts, the Holy Quran in particular. On this basis, in jurisprudential inference, injustice takes place whenever one trespasses the limits specified by the legislator. The valid limits in jurisprudence are the same specified by the legislator as well as the rational and common limits based on which the legislator has set the limits or avoided prohibition. Consequently, injustice is a criterion at work throughout the totality of jurisprudence and legal inference. Two major roles have been considered for injustice: First, in cases where attribution of something or reasoning is in incompatibility with general guidelines of Sharia law, it can restrict reason or dissuade the case. Second, it can serve as a proof of judgment in jurisprudential ramifications and newly raised issues. Manuscript Document

    • Open Access Article

      2 - A Study of Conceptual Authority in Discerning the Condition of Banning Halal and Authorizing Haram in Imamiya Jurisprudence
      Seyed Abolqasem  Naqibi Sajjad  Razaghi
      Issue 1 , Volume 3 , Spring_Summer 2020
      Abstract: The condition of banning Halal and authorizing of Haram is one of the most important discussions in Imamiya jurisprudence. Jurists consider the proviso enforceable in case the condition does not ban Halal nor authorize Haram. There is difference of opinion amo Full Text
      Abstract: The condition of banning Halal and authorizing of Haram is one of the most important discussions in Imamiya jurisprudence. Jurists consider the proviso enforceable in case the condition does not ban Halal nor authorize Haram. There is difference of opinion among them on conceptual authority in discerning the condition of banning Halal and authorizing Haram. Some jurists like Sheikh Ansari are of the opinion that the condition leading to authorization of an unchangeable rule on Haram and banning an unchangeable rule on Halal, shall be considered an instance of banning Halal and authorizing of Haram. Some other jurists, like Mohaqeq Yazdi and Nayini believe that the verdicts must first be divided into mandatory and conditional rules before expressing any authorization or banning. In mandatory rules, the late Naraqi – like Sheikh Ansari – only considers commitment to unchangeable rules (Wajib or religiously obligatory act and Haram or religiously forbidden) against the Book and Sunnah or tradition, however, commitment to act or avoid to act in permissible rules is allowed. Also, he says any change in conditional rules by setting a condition is against the Sharia law. Some other jurists, like Imam Khomeini, have resorted to the common law in expressing the quality of authority in its discernment. Manuscript Document

    • Open Access Article

      3 - Theory of Extinction of Original Obligations by Signing Commercial Papers
      Alireza  Alipanah Somayeh  Ahmadi Majdabadi Farahani
      Issue 1 , Volume 3 , Spring_Summer 2020
      Abstract: The issuance and delivery of commercial papers do not mean fulfilment of payments or extinction of previous obligations; rather, it is with the hand-over of the commercial papers that both obligations under the commercial papers are met and the original obliga Full Text
      Abstract: The issuance and delivery of commercial papers do not mean fulfilment of payments or extinction of previous obligations; rather, it is with the hand-over of the commercial papers that both obligations under the commercial papers are met and the original obligations become extinct. Although commercial papers bear obligation per se, until before payments for commercial papers are made, the criterion for action will be original obligations. There is, of course, difference of opinion among jurists on this rule, while it has been confirmed in the majority of the legal systems. However, there is another theory stipulating that issuing a commercial paper and handing it over to the creditor suffices for extinction of original obligations. The proponents of this theory believe in the “substitution of commercial papers”. Although they accept the fact that a commercial paper means ‘commitment to pay’ not ‘payment per se’, they believe that the obligation coming from the commercial paper shall be replaced with the original obligation, suggesting that somehow a shift of obligation takes place. Manuscript Document

    • Open Access Article

      4 - Fundamentals of “Principle of Unconditionality of Commercial Paper Obligations” in Iran’s Jurisprudence and Law
      Akram  Safiri Farzaneh  Karimi
      Issue 1 , Volume 3 , Spring_Summer 2020
      Abstract: The role commercial papers play in transactions and economic relations is this that they are appropriate substitutes for cash in payments. Along with easy, fast and safe transfer and turn-over, they guarantee the rights of the owner as well. Realization of thi Full Text
      Abstract: The role commercial papers play in transactions and economic relations is this that they are appropriate substitutes for cash in payments. Along with easy, fast and safe transfer and turn-over, they guarantee the rights of the owner as well. Realization of this will be possible when obligations of the signatories of the papers are expressed absolutely and clearly, not conditioned to anything else. The prerequisites calling for unconditionality of commercial papers are considered among the fundamentals of this principle, which we have studied in this paper in two sections of “legal requirements” (the need for using commercial papers instead of cash, the need for meeting speed, ease and security in carrying and transfer of commercial papers and the need for protecting the rights of the commercial paper owners) and “jurisprudential requirements” (exigency of protecting property and preventing disruption in economic system). Manuscript Document

    • Open Access Article

      5 - A Comparative Study of Coma and General Anesthesia and Brain Death in Iran’s Jurisprudence and Law
      Morteza  Chitsazan Hamed  Hasaninia
      Issue 1 , Volume 3 , Spring_Summer 2020
      Abstract: In this paper, we have first tried to define coma and then compare it with general anesthesia and brain death by resorting to the opinions of the jurists and latest medical findings. Unlike common belief, coma is not a disease; rather, it is a prolonged state Full Text
      Abstract: In this paper, we have first tried to define coma and then compare it with general anesthesia and brain death by resorting to the opinions of the jurists and latest medical findings. Unlike common belief, coma is not a disease; rather, it is a prolonged state of unconsciousness that results from damage to the person’s brain. In this paper, we will investigate the nature of coma and compare and contrast it with similar states of unconsciousness in the science of jurisprudence and law. The most important outcome of this study and the aforesaid comparison and contrast will emerge in the answer to the following question: What state of life is “the person in coma” in? There is an in-depth relation between humans’ life and death on one side and jurisprudence and law on the other side, in the sense that some rules are only applicable to death and the dead person while on the contrary, there are rules that are applicable to the person as long as he is alive and become inapplicable with the passing away of the person. Therefore, a precise examination of the concepts of life and death will be inevitable toward realizing the purpose of this paper. Manuscript Document

    • Open Access Article

      6 - A Comparison of Mortgage Contract and Transaction with Right of Restitution through an Approach based on Existing Precedent
      Gholamali  Sedghi
      Issue 1 , Volume 3 , Spring_Summer 2020
      Abstract: Transaction with right of restitution refers to any supplementary and commutative contract in which the assignor reserves the right for himself to reject consideration and restitute transferred property. In view of the law on registration of deeds and real est Full Text
      Abstract: Transaction with right of restitution refers to any supplementary and commutative contract in which the assignor reserves the right for himself to reject consideration and restitute transferred property. In view of the law on registration of deeds and real estates, transaction with right of restitution is a combined contract of rendable property and mortgage. There are, however, differences between transaction with right of restitution and mortgage including this that the contract interests belongs to the transferee in the transaction with the right of restitution while corpus interests of the mortgaged property belong to the mortgagee. By virtue of Article 324 of the law on registration of deeds and real estates and the existing precedent, all the benefits belong to the purchaser and given religious rules and regulations, this stipulation is the same as the debt interest. However, if we ignore the right of the purchaser to collect interests, given the degree of inflation and devaluation of money, we have equally ignored commutative justice in his case. Therefore, belongingness of the interests to him seems to be possible via bartering and realization of relative balance. Manuscript Document
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    • Open Access Article

      1 - Priority in Subscription of New Shares in Joint Stock Companies in Iranian and American Legal Codes
      Abduolreza  Asadi Aqboaghi
      Issue 2 , Volume 2 , Autumn_Winter 2019
      Abstract: The priority in subscription of new shares is the same as priority given to the previous shareholders that is under certain legal procedures and nature. The source of priority in Iranian law is law and articles of association in American law. In both legal sys Full Text
      Abstract: The priority in subscription of new shares is the same as priority given to the previous shareholders that is under certain legal procedures and nature. The source of priority in Iranian law is law and articles of association in American law. In both legal systems, priority is a transactable right. The transfer of this right is carried out in the stock market or outside the market and based on restrictions the shareholders face in transfer of their shares. Like movable properties, priority can be attached by the third party and it can be sold on tender without formalities and immediately after the approval of the court. In Iranian law, priority is a peremptory norm and a non-abrogatable right of the former business partners. According to the articles of association, their rights cannot be denied although denying their priority is within the discretion and authority of extraordinary general assembly, which should be well-justified and non-forceable. The procedures must be brought in the reports of the board of directors and the official inspectors for proper decision making. In the United States of America’s law, however, the priority is a complementary principle and the shareholders will enjoy priority in case it has already been mentioned in the articles of association of the bank or financial institutions, otherwise, they will have no priority in subscription for new shares or for capital increase unless the articles of association is amended. Manuscript Document

    • Open Access Article

      2 - Explanation of Legal Principle of “Everything that is known only by claimant will be heard” and Its Application in Iranian Legal Code
      Seyed Mohammad Sadeq  Mousavi Seyed Omid  Mousavi
      Issue 2 , Volume 2 , Autumn_Winter 2019
      Abstract: The legal principle of “Everything that is known only by claimant will be heard”, briefly known as the “maa laa ya’lam” is among legal principles that helps settlement of certain legal claims. Some cases are known only to the claimant due to confidentiality. T Full Text
      Abstract: The legal principle of “Everything that is known only by claimant will be heard”, briefly known as the “maa laa ya’lam” is among legal principles that helps settlement of certain legal claims. Some cases are known only to the claimant due to confidentiality. Therefore, it is impossible to present evidence at the court for such claims. The legal principle of maa laa ya’lam (transliterated as what he does not know) is used to help resolving the case and the only solution is accepting the claimant’s claim without evidence. According to the related exhibits and evidences, this is a well-proven legal principle that has been invoked by the Infallible Household of the Prophet (pbuh) and Muslim jurists have made frequent mentions of it in their books. Instances of this legal principle’s effectuality can be found in various civil rights and penal codes. For instance, in civil rights, the principle is used in such claims on marriage, menstruation and payment of various dues, and also in penal code, it is used in case of presenting proof of no adultery. Manuscript Document

    • Open Access Article

      3 - The Nature and Conditions for Transfer of Professional Soccer Players
      Seyed Hamid Reza  Mousavipour
      Issue 2 , Volume 2 , Autumn_Winter 2019
      Abstract: The transfer contract of professional soccer player is the most important contract in this sport. According to this contract, the player is committed to play for a certain club within a certain period of time for a specified sum of money. Conclusion and termin Full Text
      Abstract: The transfer contract of professional soccer player is the most important contract in this sport. According to this contract, the player is committed to play for a certain club within a certain period of time for a specified sum of money. Conclusion and termination of this contract are subject to special international and domestic rules and regulations that are quite distinctive from other contracts. Like a person’s hiring contract, this contract is a binding obligation that will be enforceable after signing of the two parties. The contract parties are the professional player and the sports club that must possess capacity to sign a contract. This contract is of binding obligation, thus it shall be only null and void with the consent of the parties or upon a justifiable excuse. Meanwhile, the contract parties should act based on bona fide. In this research work, we will first review the nature of contracts in Iranian law and then proceed with studying conditions for validity of the contract according to the international and domestic rules and regulations. Manuscript Document

    • Open Access Article

      4 - Delivery of Goods for Future Transaction and Its Guarantee Based on Imamiyah Jurisprudence and Positive Laws (ius positum)
      Seyed Mohammad Sadeq  Mousavi Maryam  Pourtoluei
      Issue 2 , Volume 1 , Autumn_Winter 2019
      Abstract: When a commodity is submitted by the owner to the other party for future transaction, the mutual relations can be in the form of contract, unilateral obligation or mere authorization. Therefore, the nature of this relationship depends on the intention of the p Full Text
      Abstract: When a commodity is submitted by the owner to the other party for future transaction, the mutual relations can be in the form of contract, unilateral obligation or mere authorization. Therefore, the nature of this relationship depends on the intention of the parties and there is no obstacle according to Sharia law to it. The practice has some effects and it is necessary to identify these effects in order to determine the type of relationship of the transactors and arbitration between them. Guarantee on damage or loss of the commodity is one of the guarantees that in view of some jurists is the owner’s obligation, while some consider it that of the receiver. However, since the owner delivers the commodity to the other party upon his will, it is unlikely to consider the receiver responsible unless in wasting commodity or in encroachment. Therefore, guaranteeing the commodity in case of damage or loss is on the owner. Upon evaluation of various views on the nature and impact of the said institution, in this paper all aforesaid views can be taken as one. In this case, the probable problems for the traders in this area will be removed and the ground will be prepared for a fair arbitration between them. Manuscript Document

    • Open Access Article

      5 - A Study of the Procedures for Liquidating Bankrupt Banks (A Comparative Study of American and Iranian Legal Codes)
      Mohammad  Isai Tafreshi Khadijeh  Shirvani
      Issue 2 , Volume 2 , Autumn_Winter 2019
      Abstract: It was after the 1929 Great Recession in the United States that the world economy suffered heavy losses and Iranian officials began paying attention to the bankruptcy of the banks and its highly negative impacts on the national economy. Consequently, the lawma Full Text
      Abstract: It was after the 1929 Great Recession in the United States that the world economy suffered heavy losses and Iranian officials began paying attention to the bankruptcy of the banks and its highly negative impacts on the national economy. Consequently, the lawmakers came to the conclusion that rules and regulations on bankruptcy of the commercial corporations are not sufficient for verifying bankruptcy of the banks – which are considered commercial corporations in kind. On this basis, the United States has tried to consider certain rules and regulations for bankruptcy of banks, thanks to their role in national economy and their differences from the commercial corporations. The bankruptcy code for banks and financial institutions in the United States is called Resolution Regime. It is the government’s legal framework that resolves a failed bank in an orderly way to prevent the collapse of financial markets and the country’s financial system, to continue key services by the banks and to prevent the burden of bankruptcy on the government and taxpayers. In Iranian law, the bankruptcy regime of the banks is not a hundred percent apart from the bankruptcy of the corporations. In case of the bankruptcy of a bank, the Trade Law rules and regulations on bankruptcy will be considered as general rules and other monetary and banking rules and regulations will be particular ones. In case of the silence of the particular laws, the general rules and regulations will be applicable in case of the bankruptcy of the banks. In U.S. law, liquidation is the last step to deal with a bankrupt bank, while in Iranian law - since there is no substitute method for liquidation - the bankrupt bank starts liquidation immediately after receiving the order of bankruptcy. Manuscript Document

    • Open Access Article

      6 - Legal Status of Contracts Contradicting Conditional Agreements
      Khoshkar Mohammad Baramai Abbas  Asgari
      Issue 2 , Volume 2 , Autumn_Winter 2019
      Abstract: Although in conditional contracts the effects of contract appear after realization of the conditionality of the contract, that does not mean the conditional contract lacks its effects before realization of the conditionality. Therefore, in alienative contracts Full Text
      Abstract: Although in conditional contracts the effects of contract appear after realization of the conditionality of the contract, that does not mean the conditional contract lacks its effects before realization of the conditionality. Therefore, in alienative contracts, the effect of conditional contract before meeting its conditions shall be attributed to the buyer as a sort of conditional ownership. Perhaps it is because of such right for the promisee in the conditional contract (before meeting the conditions) that any contract contradicting with it may be pronounced non-effective or void. However, a review of the statements of evidence of each one of the three reasons for nullity, ineffectuality and authenticity of such contracts it can be claimed that any contract contradicting conditional contract is sound and valid. This, however, does not mean ignoring the promisee’s rights in conditional contract; rather, by virtue of the conditional contract, the object of transaction along with the buyer’s legitimate right in conditional contract will be transferred to the promisee as is. Of course, for final decision on the conditional contract, the parties should wait for the final status of the conditionality in the contract. In case of failure to meet the conditions, the real right of the buyer in conditional contract over the object of transaction will be null and void and when the conditions are met, one should see when the effects of the conditional contract will be valid. In the meantime, there should be a distinction between formation and validity of the contract vis-à-vis the promisee of the conditional contract. Manuscript Document

    • Open Access Article

      7 - Jurisprudential and Legal Study of the Concepts of Right and Decree
      Seyed Alireza  Foroughi
      Issue 1 , Volume 1 , Spring_Summer 2018
      Abstract:Right in Islamic jurisprudence entails two meanings: First, right in its general sense, means property and decree and in its specific sense it means right. The examples for this denotation of right are the right of fatherhood, right of guardianship for the rule Full Text
      Abstract:Right in Islamic jurisprudence entails two meanings: First, right in its general sense, means property and decree and in its specific sense it means right. The examples for this denotation of right are the right of fatherhood, right of guardianship for the ruler, right of administratorship, right of custody and the like. Although these are interpreted as right in the literature of the jurisprudents, they are all examples of decree. Second, right in its particular sense is vis-à-vis property and decree. Therefore, it has been said that the jurisprudents who put right in front of property and decree, they mean a type of religiously obligatory decree, which is also called religious decree or the decree of the Legislator. However, in cases we consider decree in its general sense, either obligatory or enacted, it is clear that right (like property) is a type of enacted decree. Therefore, decree in its general sense is attributable to its particular meaning (second meaning). On this basis, when right is compared and contrasted with decree, the denotative meaning of the two is involved and when in jurisprudence, jurists talk about the effects and consequences of right, like the capacity to waiver, and transfer, they mean that right possesses these effects as an enacted decree and its independent rational validity. On the contrary, the obligatory decree lacks such characteristics. This paper is an attempt to study the relationship between obligatory decree and enacted decree, and as well as the viewpoints of theoreticians at law and the independent viewpoints. Attempts also have been made to discuss the criteria for distinguishing right from decree and the procedure and criteria for judgment when doubt is raised about right and decree. In case of the absence of criteria, what shall be the basis for performance? Manuscript Document

    • Open Access Article

      8 - Jurisprudential and Legal Investigation of Digital Data Value and Ownership in Cyberspace
      Seyed Alireza  Foroughi Asma  Hosseinzadeh Sereshki
      Issue 1 , Volume 2 , Spring_Summer 2019
      Abstract: In this study, we have classified digital data into three groups to precisely investigate digital data value and ownership: (1) Digital data with foreign likeness. Cyberspace is an environment for intellectual property such as computer software that are availa Full Text
      Abstract: In this study, we have classified digital data into three groups to precisely investigate digital data value and ownership: (1) Digital data with foreign likeness. Cyberspace is an environment for intellectual property such as computer software that are available as digital data. (2) Big data that is naturally realizable outside the network but is available in cyberspace since it is large in volume and time-consuming for external handling. (3) Data such as domain and web hosting that are instruments for cyberspace and there is no foreign likeness for them and they have been created according to the requirements of the cyberspace. The value of the digital data is determined by the data’s economic value on one hand, and on the other hand, by inference to the types of properties in Fiqh and Islamic law. Ownership, too, in the context of full claim on digital data is acceptable due to the advantage of possessing it. In this study, we have studied each category under a certain legal system with respect to the characteristics of each category and qualities of properties according to Fiqh and Islamic law: The first and second groups – as intellectual rights – are placed under the principle of intellectual property and its rules of ownership. Cyberspace instruments shall be considered as the infrastructures such as hardware and the resulting benefits as well as ownership of such data will be investigated under civil property system. Manuscript Document

    • Open Access Article

      9 - A Comparative Study of Mortgage Contract and Its Establishment in Iranian and American Legal Systems
      Farideh  Shokri
      Issue 2 , Volume 1 , Autumn_Winter 2019
      Abstract: According to Iranian legal system, despite the existence of fixed debt in an obligation, pledgee and its waiver, the mortgage contract shall be enforceable and the right of pledgee shall be established on the mortgaged object. This is done without any differen Full Text
      Abstract: According to Iranian legal system, despite the existence of fixed debt in an obligation, pledgee and its waiver, the mortgage contract shall be enforceable and the right of pledgee shall be established on the mortgaged object. This is done without any difference between the two stages of creation and establishment of the right of pledge. Even in the case of immovable mortgage it is obligatory to register the document. On the other hand, in Iranian legal system the principle of transferability of the mortgage – however briefly – has been officially recognized so that conclusion of a mortgage contract and the establishment of the right of pledgee is no obstacle to future transfer of mortgage or pertinent rights by the mortgagor in case it does not violate the rights of the pledgee. The rule of this principle, without special stipulations on establishment of the rights mentioned in the contract such as obligation to register the mortgage, will sometimes raise consequences such as dispute in discerning priority, reference to the superficial contracts containing the date of priority and consequently violating the rights of pledgee as well as legal dispute in courts and probably penal procedures. Whereas in many legal systems across the world, the US legal system for instance, there is a distinction between the two stages of concluding the mortgage contract or a pledge and stipulations for the establishment of the rights of mortgage for either side. In these legal systems, a distinction has been made between movable and immovable mortgage and establishment of the right of pledgee on each case requires finishing certain formalities otherwise, the right of the pledgee will be incomplete and the priority will be with the other party finishing the procedure. The question raised in this paper is this: Is it possible to make a distinction between the two stages in Iranian legal system with respect to the existing jurisprudential laws and the enforceable legal texts? Manuscript Document

    • Open Access Article

      10 - Certificate of Incompatibility based on Mutual Consent and Its Enforcement in Conformity with Jurisprudence and Positive Laws
      Leila Sadat  Asadi
      Issue 2 , Volume 1 , Autumn_Winter 2019
      Abstract: Mutual consent divorce is one major cause behind issuing certificate of incompatibility that upon the very consent, the court is free to avoid entering into the nature of the dispute. The family law, ratified in 2012, while stipulating a time span for issuing Full Text
      Abstract: Mutual consent divorce is one major cause behind issuing certificate of incompatibility that upon the very consent, the court is free to avoid entering into the nature of the dispute. The family law, ratified in 2012, while stipulating a time span for issuing certificate of incompatibility based on mutual consent, has conditioned its enforcement to the request by the husband. Therefore, a single request by the wife cannot be legally sufficient for the enforcement of the law. Such a preference is synonymous with spoiling the financial rights of the wife and this makes the wife’s will in mutual consent divorce ineffective. There is also ambiguity in the nature of divorce based on mutual consent and the type of divorce contract, which this paper intends to study. Manuscript Document
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