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Open Access Article

1 - Jurisprudential and Legal Study of the Concepts of Right and Decree
Seyed Alireza Foroughi

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 More

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 profile

Open Access Article

2 - Jurisprudential and Legal Study of Provisos after Cancellation
Seyed Mohammad Hadi Saei Maryam Saqafi

Cancellation is reached when both parties have consent over the termination of the contract. This means the end of the contract effects and the resulting commitments. This, however, relates to the future; therefore, it is not like nullification of the contract. It does More

Cancellation is reached when both parties have consent over the termination of the contract. This means the end of the contract effects and the resulting commitments. This, however, relates to the future; therefore, it is not like nullification of the contract. It does not have retrospective impact, and consequently it does not affect the pre-cancellation consequences. This point has been neglected by some and in their explanation of rules regarding provisos after cancellation they maintain that all conditions are nullified including attributes, performance and collateral events. Pursuant to this, the Civil Code in Article 246 stipulates that when a contract is terminated by mutual consent, its terms become null and void, whereas rules regarding and effects of each proviso are different and Article 246 shall not be attributable to all of them. This means that the condition of attribute is not within the prerogative of the said article and hence it is not nullified, but also it returns to the initial owner according to the subject of transaction. The condition of collateral events, due to its certain characteristics, is realized immediately after the conclusion of the contract, thus it cannot be nullified or waived either. In the meantime, only the condition of performance, either negative or positive, is nullified due to cancellation although it leaves behind consequences that are analyzable. Manuscript profile

Open Access Article

3 - Resale of Goods in Convention on Contracts for the International Sale of Goods and Possibility of Its Justification based on Property Seizure of Debtor in Iranian Law and Jurisprudence
Elham Shariati Najafabadi Abbas Karimi

Resale of goods, by virtue of the Article 88 of UN Convention on Contracts for the International Sale of Goods (CISG) is a non-judicial practice and an exception that in addition to preventing incurrence of losses, is a solution to the undecided state of contracts witho More

Resale of goods, by virtue of the Article 88 of UN Convention on Contracts for the International Sale of Goods (CISG) is a non-judicial practice and an exception that in addition to preventing incurrence of losses, is a solution to the undecided state of contracts without having to nullify the previous contract. This paper intends to study the possibility of justification of this practice based on Iranian law. The author has applied an analytical, descriptive and comparative method to first understand the resale of goods according to the Convention, and identify similar institutions in Iranian law and jurisprudence. Seizure of property of debtor is among the cases that can justify resale of the property accordingly. Manuscript profile

Open Access Article

4 - A Jurisprudential Study of Guaranteeing Principal Capital in Commissioned Manufacture Bonds
Masoumeh Mazaheri Hamideh Goushi Dehaqi

Abstract:In Islamic Sharia law, with respect to the rule of the association of profit and loss, basically the principal capital return is not guaranteed. Therefore, gaining real profit is always associated with the possibility of loss and damage. Whereas in Islamic fina More

Abstract:In Islamic Sharia law, with respect to the rule of the association of profit and loss, basically the principal capital return is not guaranteed. Therefore, gaining real profit is always associated with the possibility of loss and damage. Whereas in Islamic financial mechanisms such as commissioned manufacture bonds, the payment of the nominal value included in the bonds is guaranteed by the publisher in due date. Therefore, the owners of the bonds who are the investors of transactions will not sustain a loss or receive a reward for the reduction or increase in the value of the project upon receiving the nominal value of the bonds (principal capital). However, an analysis of the procedure for publication of the bonds, makes it clear that in commissioned manufacture bonds based on interest, the receipt of nominal value of the bonds will be realized according to the entitlement of the owners in due date proportionate to the total value of the amount due. Also guaranteeing the principal capital by the publisher of the commissioned manufacture bonds is according to the liability of the seller to pay for the object of sale. Moreover, the owners of the bonds as the buyers only own the amount due in duty of the debtor and they shall have no right in project thus commissioned. In this sense, any increase or reduction in the value of the project will have no effect in the amount of their claim. Whereas the owners of commissioned manufacture bonds along with rent with an ownership option are the joint owners of the project, thus in case of increase in project value in connection with the nominal value of the bonds, they are entitled to claim the value added. This is because according to the rule of logics the owner of actual property deserves to take a share of the increase in value of actual property value as he is to sustain the damages incurred on the actual property. Similarly, the reduction in project value in proportion to the nominal value of the commissioned manufacture bonds along with the rent with an ownership option, must be attributable to the joint owners, i.e. investors. Manuscript profile

Open Access Article

5 - Islamic Judicial System and Diversity of Courts
Mohammad Ja’fari Harandi

The world today, compared to the past, has undergone several changes. Many of the yesteryear man’s usual issues are done quite in a different manner. The procedure of Islamic judgement and arbitration is a part of jurisprudence that has not undergone the necessary chang More

The world today, compared to the past, has undergone several changes. Many of the yesteryear man’s usual issues are done quite in a different manner. The procedure of Islamic judgement and arbitration is a part of jurisprudence that has not undergone the necessary changes yet. The question of this paper is: what are the needs to change Islamic juridical procedures and judicial system? Taking into account the religious principles, particularly legitimacy of the judge as well as distinction between arbitration on the divine rights and the people’s rights based on jurisprudence, and also, arguing that social rights are distinct from the divine rights, attempts have been made in this research to propose some changes in the juridical procedures which include: setting up of different courts congruent with the nature of the forwarded cases such as individual personal rights, society’s rights, and divine rights. The judges dealing with the first two groups of rights are to be elected by the people, while the judges handling the cases related to the divine rights and pertaining issues are to be appointed by the ruler of the Islamic state. Manuscript profile

Open Access Article

6 - Rational Fundamentals for Absoluteness of Collective Knowledge
Seyed Abolqasem Naqibi Mohammad Hossein Soheily

Abstract:The fundamentals of absoluteness of collective knowledge can be accurately explained in two separate categories: First, absoluteness of collective knowledge in rational terms, i.e. free from practical canonical principles. Second: Absoluteness of collective kno More

Abstract:The fundamentals of absoluteness of collective knowledge can be accurately explained in two separate categories: First, absoluteness of collective knowledge in rational terms, i.e. free from practical canonical principles. Second: Absoluteness of collective knowledge in terms of Sharia law and with a view on those principles. This paper intends to study the first section. To that end, prohibition of the conclusive discord and the necessity of the conclusive consent has been studied. In the course of these discussions, it will become clear that although the prohibition of the conclusive discord is easily provable, proving of the necessity of conclusive consent has only two logical solutions: First, the rule of incumbency that is attributable only according to Mohaqeq Araqi’s theory of interpretation of collective knowledge. Second, absoluteness of the probability of religious duty in each segment of the collective knowledge that will be accurate only based on the negation of the rule of indecency of punishing the one who has not received the penal warrant. Also in this paper, attempts have been made to provide responses to the doubts posed by the opponents of the prohibition of the conclusive discord and the necessity of conclusive consent and the refutation expressed by Shahid Sadr to the rule of punishment of the one who has not received the penal warrant. Manuscript profile

Open Access Article

7 - Delivery of Goods for Future Transaction and Its Guarantee Based on Imamiyah Jurisprudence and Positive Laws (ius positum)
Seyed Mohammad Sadeq Mousavi Maryam Pourtoluei

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 More

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 profile

Open Access Article

8 - A Review of the Impact of Bona Fide on Waiving the Liability of the Physician in Iranian Law (In Comparative Study with Canadian Good Samaritan Law)
Zahra Tabesh

Abstract: Due to its ancient history and special criticality, the medical profession has always been accompanied with serious legal challenges in the balance of rights between the physician and the patient. It is for years that bona fide is being used as a criteria and More

Abstract: Due to its ancient history and special criticality, the medical profession has always been accompanied with serious legal challenges in the balance of rights between the physician and the patient. It is for years that bona fide is being used as a criteria and a guarantee for the enforcement of law by the Iranian-Islamic jurists and law experts. Despite the fact that medical acts are considered bona fide in nature, in the judicial procedure and system of Iran, it is difficult to approve the good intention of all people rendering medical services. Therefore, despite a long history of bona fide and the liability of the physicians, a review of this principle in comparison with the Good Samaritan Law in Canadian law - as its common law likeness – could open new horizons to clarifying the liability of the physicians. According to the findings of this study, Good Samaritan Law is applicable as a liability outside the terms of the contract and only in emergency conditions and chiefly in the case of a non-physician. However, bona fide has a broader and more general coverage that can include – in case all requirements are met – all areas of liability of the physician. The demonstrable aspect of bona fide in creating rights for claiming a fee by the service provider is a strong point with this principle and a priority over the Good Samaritan Law. Manuscript profile

Open Access Article

9 - Certificate of Incompatibility based on Mutual Consent and Its Enforcement in Conformity with Jurisprudence and Positive Laws
Leila Sadat Asadi

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 More

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 profile

Open Access Article

10 - A Comparative Study of Mortgage Contract and Its Establishment in Iranian and American Legal Systems
Farideh Shokri

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 More

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 profile

Open Access Article

11 - Mortgage of Jointly Owned Property in the Jurisprudence of Five Religious Schools of Law and in Iranian Law
Saeed Farsad

Abstract: Mortgage of jointly owned property (indivisum) is permissible according to Imamiyah, Maliki, Shafi’i, and Hanbali (except Hanafi) schools of Law because it is an instance of the rule of dominion. This is because conclusion of the mortgage contract does not mea More

Abstract: Mortgage of jointly owned property (indivisum) is permissible according to Imamiyah, Maliki, Shafi’i, and Hanbali (except Hanafi) schools of Law because it is an instance of the rule of dominion. This is because conclusion of the mortgage contract does not mean possession of the jointly owned property. It is clear that submission of the jointly owned property to the mortgagee, in cases where it requires possession of the shares of the other partners, requires obtaining their consent. In cases where the mortgager submits the property to the mortgagee without the consent of the other partners, he shall be considered legally responsible for that. However, in cases where the submission of property means evacuation, the submission of the property does not mean possession of the shares of other partners, thus according to the jurisprudence of the above-said schools of law it does not need their consent for evacuation. This paper intends to study these issues in the jurisprudence of the abovementioned five schools of law and in the Iranian law. Manuscript profile

Open Access Article

12 - Genetic Modification of Human Characteristics and Capacities in View of Ethics and Jurisprudence
Akram Safiri Zahrasadat Mirhashemi

Abstract: Genetic technology and its application on man is one of the newly discovered scientific issues that helps genetic modification of human forces and capacities to change him into a super-human. Genetic modification of human capacities is creating a change, alter More

Abstract: Genetic technology and its application on man is one of the newly discovered scientific issues that helps genetic modification of human forces and capacities to change him into a super-human. Genetic modification of human capacities is creating a change, altering or genetically modifying human genes so that some organs function beyond natural limits of humans. Genetic modification does not pursue treatment of people with certain diseases; rather, it reinforces genetic characteristics of a healthy human. The general ethical codes and principles as well as the rule of wisdom that are based on the advantages and disadvantages of using this technology, serve as guidelines for us in issuing an ethical rule on reinforcing human capacities through this technology. To that end, this paper intends to have access to a crystal clear ethical rule on genetic modification based on ethics and Fiqh or Islamic jurisprudence. We will study genetic modification of human capacities by genetic selection of the embryo in comparison with genetic modification of human capacities through genetic recombinant. In the meantime, we will discuss in detail the disadvantages and damages coming from genetic modification, highlight its unethical manners and propose its prohibition by law. Manuscript profile

Open Access Article

13 - Jurisprudential and Legal Investigation of Digital Data Value and Ownership in Cyberspace
Seyed Alireza Foroughi Asma Hosseinzadeh Sereshki

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 More

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 profile

Open Access Article

14 - A Comparative Study of Undue Influence in British Law and Principle of Duress and Compulsion in Iranian Law
Mohsen Esmaili Kazem Shah’bani

Abstract: In British law, equity courts have created and expanded the principle of “undue influence” due to restrictions with principle of duress to compensate damages imposed on the victims. This legal institution is legally applied in the case of a person who had been More

Abstract: In British law, equity courts have created and expanded the principle of “undue influence” due to restrictions with principle of duress to compensate damages imposed on the victims. This legal institution is legally applied in the case of a person who had been under the influence of a third party, his parents for instance, when signing a contract. Therefore he/she is not legally committed to the terms of the contract he has signed. Enforcement of undue influence is one reason for unfairness of the contract and legally sufficient to terminate it. The principle of duress and compulsion in Islamic jurisprudence supports the will of weak and under-influence individuals to some extent. Duress in case of threat and lack of satisfaction will render the contract null and void. Compulsion, in its totality, has no effect on the contract and it only removes penal liability. Only misuse of compulsion and emergency contracts signed under duress (i.e. in cases compulsion has been practiced intentionally by the other party) are similar to the undue influence, neither of which has received outright support by the legislators. After a comparative study of these two legal institutions in Iran and the UK, this paper came to the conclusion that there is a need to reform the principle of duress and compulsion in our legal system. Manuscript profile

Open Access Article

15 - “With-profits” Bonds as Modern Islamic Financial Instruments versus Lease Bonds
Azam Lashkari Yousefi

Abstract: With-profits bond is one of the modern financial instruments in Islamic system of finance. The issuer of these bonds will be able to offer benefits or future services to the holders of the bonds while maintaining the original durable property. Therefore, the h More

Abstract: With-profits bond is one of the modern financial instruments in Islamic system of finance. The issuer of these bonds will be able to offer benefits or future services to the holders of the bonds while maintaining the original durable property. Therefore, the holders of these bonds will be able to present the benefits and future services with ease of mind upon accumulation of small capitals to expand this business. On the other hand, the holders of these bonds will enjoy future benefits and services upon a purposeful program and with cheaper prices. They will be also able to transfer their rights in financial markets. Lease bond is another Islamic financial instrument, the holders of which share the joint ownership of the property as is. The resulting benefit is thus distributed according to the lease contract among the issuers or owners of the bonds. Due to some similarities in these two types of bonds, some have mistakenly hypothesized that lease bonds shall cover the advantages of with-profits bonds. This paper has resorted to library research method to review the nature and structure of with-profits bonds to highlight the need for issuing these bonds in comparison with the lease bonds. Manuscript profile

Open Access Article

16 - Investigating Validity of Probative Evidences and Its Application in Jurisprudence and Islamic Law
Seyed Abolqasem Naqibi Elham Maghzi Najafabadi

Abstract: The validity of probative evidences is one of the fundamental discussions in methodology of religion. Probative evidences (religious circumstantial evidences) are among the evidences needed for interpretation and inference of the Sharia rules, the signifiers o More

Abstract: The validity of probative evidences is one of the fundamental discussions in methodology of religion. Probative evidences (religious circumstantial evidences) are among the evidences needed for interpretation and inference of the Sharia rules, the signifiers of which–in addition to comparative signified–have sometimes evidentiary effects. Evidentiary effect in methodology means the religious effects attributable to the rational instruments, necessities and requirements, either ordinary or accidental, which can be taken as evidence or codes of action. In case of the validity of probative evidence and its reasons, three theories may be put forth: Some jurists attribute the nature of evidence, in terms of proof, depending upon its validity thus rule on absolute validity of probative evidence. Some others, however believing in absolute validity of the probative evidence, have attributed the reason to the quality of proof and attribution of the reasons for validity of the evidence. The third group of jurists believe in a detailed manner which draws a line of separation between various types of evidence and probative evidences. Apparently, to study the validity of probative evidences, the reasons for validity of the evidence must be taken into consideration. Therefore, if the reason behind validity of the evidence is an instance of compulsory obedience, its probative reasoning shall not be valid but if it is based on logical and consistent usages (which is true in the case of the majority of cases) the criterion will be constraints in logical usages and related terms. This is because men of reason at times take something as evidence while at the same time reject its probative values, such as evidence on probation, possession, presumption of marriage bed, and confession. Manuscript profile

Open Access Article

17 - Legal-Jurisprudential Analysis of Conditional Sale Option in Relation to Transactions with Right of Restitution
Saeed Karami

Abstract: There is divergence of opinions on contracting or pledging in optional sale. Imamiyah jurists endorse the act and consider it as an instance of sale in nature. Sunni jurists identify optional sale as bay’ al-Wafa or buyback sale, associating it with a pledge ( More

Abstract: There is divergence of opinions on contracting or pledging in optional sale. Imamiyah jurists endorse the act and consider it as an instance of sale in nature. Sunni jurists identify optional sale as bay’ al-Wafa or buyback sale, associating it with a pledge (rahn) contract. The conditional sale can be analyzed in two ways: First, the conditional sale involving the contractual relationship between mortgagor (seller) and mortgagee (buyer) stipulated in Article 34 of the Law on Registration of Deeds; Second, the conditional sale that does not govern the contractural relationship between the seller and buyer, and it is a real sale under articles 485-462 of the Law. The conditional sale governing the contractural relationship between the mortgagor and mortgagee is an instance of transaction with the right of restitution (Article 33 of the Law). This is why the law has considered the request for registration of the property in conditional sale as a right for the debtor, because in this type of conditional sale the buyer does not intend to conclude a contract of sale. Any negligence of this criterion will raise ambiguities: First, any conditional sale will be taken as the one with the right of restitution, whereas it is otherwise. Second, the real conditional sale has been well stipulated in Article 399 of the Civil Code; therefore, all sales stipulated in Article 399 of the Civil Code must be considered as the transactions with the right of restitution. It is clear that the existence of the element of option in a sale contract does not mean it is an instance of transaction with the right of restitution. Articles 33 and 34 of the Law on Registration of Deeds are not exclusive to provisions of Article 459, because this article is not about the conditional sale governing the contractual relationship between the mortgagor and mortgagee, whereas articles 33 and 34 of the Law govern such relationship. Manuscript profile

Open Access Article

18 - Legal Status of Contracts Contradicting Conditional Agreements
Mohammad Mohammad Baramai Abbas Asgari

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 More

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 profile

Open Access Article

19 - 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

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 More

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 profile

Open Access Article

20 - The Nature and Conditions for Transfer of Professional Soccer Players
Seyed Hamid Reza Mousavipour

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 More

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 profile

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21 - A Study of the Procedures for Liquidating Bankrupt Banks (A Comparative Study of American and Iranian Legal Codes)
Mohammad Isai Tafreshi Khadijeh Shirvani

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 More

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 profile

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22 - Priority in Subscription of New Shares in Joint Stock Companies in Iranian and American Legal Codes
Abduolreza Asadi Aqboaghi

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 More

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 profile

Open Access Article

23 - Role of Injustice in Jurisprudential Inference
Seyed Alireza Foroughi Mahdi Mohammadi

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 More

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 profile

Open Access Article

24 - A Study of Conceptual Authority in Discerning the Condition of Banning Halal and Authorizing Haram in Imamiya Jurisprudence
Seyed Abolqasem Naqibi Sajjad Razaghi

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 More

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 profile

Open Access Article

25 - Theory of Extinction of Original Obligations by Signing Commercial Papers
Alireza Alipanah Somayeh Ahmadi Majdabadi Farahani

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 beco More

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 profile

Open Access Article

26 - Fundamentals of “Principle of Unconditionality of Commercial Paper Obligations” in Iran’s Jurisprudence and Law
Akram Safiri Farzaneh Karimi

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 More

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 profile

Open Access Article

27 - A Comparative Study of Coma and General Anesthesia and Brain Death in Iran’s Jurisprudence and Law
Morteza Chitsazan Hamed Hasaninia

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 unconsc More

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 profile

Open Access Article

28 - A Comparison of Mortgage Contract and Transaction with Right of Restitution through an Approach based on Existing Precedent
Gholamali Sedghi

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 More

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 profile

Open Access Article

29 - An Analysis of Dissolving Condition based on Evidence of Conditional Sale in Iranian Law and Imamiyah Jurisprudence
Alireza Abin

A broad interpretation of the dissolving condition indicates that it is a condition realization of which revokes undertaking(s) between the obligor and the obligee and cancels the contract or other similar legal instruments from the beginning (with a retroactive effect) More

A broad interpretation of the dissolving condition indicates that it is a condition realization of which revokes undertaking(s) between the obligor and the obligee and cancels the contract or other similar legal instruments from the beginning (with a retroactive effect). There is no express legal text on the rule of dissolving condition in domestic standing laws. This has given birth to diversified reasoning by the legal experts. Moreover, in legal terms, the approach followed by Imamiyah jurists vis-à-vis this legal institution is not identical so that some consider it problematic based on such evidences as principle of definitiveness of conditions, inconsistency of dissolving condition with requirement of nature of condition and lack of legality of evidences on conditions. On the contrary, some believe in the soundness of the institution of dissolving condition based on the legality of the evidences on conditions. This paper is devoted to analysis of consequent opinions and approaches of experts to finally put forth its selected viewpoint on feasibility of soundness and use of such institution in Iranian law and Imamiyah jurisprudence and prove legal soundness of its application on attachment of Articles 232 and 233 of Civil Law to Articles 10 and 975 of the same law. However, it seems that the generality of evidences on conditions prove legality of conditions in creating or destroying the legal effects. Manuscript profile

Open Access Article

30 - Typology of Rules of Quran and Tradition in Comparing and Contrasting Criterion of Contradiction in Principle of Conditions
Mohammadreza Khalilzadeh

The important status of the principle of conditions in jurisprudence and the rights of undertakings is something clear. The recent version of this principle excludes conditions countering the Book (Holy Quran) and tradition. Identifying the conditions countering the Boo More

The important status of the principle of conditions in jurisprudence and the rights of undertakings is something clear. The recent version of this principle excludes conditions countering the Book (Holy Quran) and tradition. Identifying the conditions countering the Book and tradition and putting forth a regulation to help the experts in Islamic law, jurists, and in cases the judges in comparing and contrasting instances of contradiction to the Book and tradition, will be very helpful. The classification of orders by the Book and tradition into positive and imperative rules, and the imperative rules into mandatory and non-mandatory, the researcher came to know the difference in the existence of criterion contradictory to the Book and tradition. This paper has embarked on typology of Quran and tradition and presenting a criterion for readdressing the condition contradictory to the Book and tradition. Manuscript profile

Open Access Article

31 - Application of Evidences on Liability against Deception in Supporting Consumers
Rohullah Zarchipour

After developments in urban life and industrialization of manufacturing sector that came to the disadvantage of consumers, supporting consumer rights has always been a concern of lawmakers. The obscurity of jurisprudential fundamentals attesting to support of consumer r More

After developments in urban life and industrialization of manufacturing sector that came to the disadvantage of consumers, supporting consumer rights has always been a concern of lawmakers. The obscurity of jurisprudential fundamentals attesting to support of consumer rights, uncertainty over lack of establishing justice between the producer and consumer, and fears over disappointment of producers stand as major obstacles to support this group. This paper is devoted to application of evidences on liability against deception in line with supporting the consumers. These evidences help the person sustaining loss or damage in consequence of deceit to resort to liability against deception. As a result, a consumer with no knowledge of product specifications and deprived of required information on product use due to complexity of the manufacturing process, who has sustained loss or damage, shall receive due support. There are three advantages to consumer’s resorting to evidences on liability against deception: a) In addition to contractual relationships, these evidences are applicable to non-contractual relationships as well; b) They are invokable to losses such as destruction of property and infringement of rights; c) According to the evidences, deceit, knowingly or unknowingly, is a liability to consumers. Resorting to evidences on liability against deception paves the path for joint liability between producers and the chain of vendors which turns to be in favor of the consumer. Manuscript profile

Open Access Article

32 - Fundamentals of Validity of Ownability in Imamiyah Jurisprudence and Positive Laws
Mohammad Mohammad Baramai سيدحسن داودالموسوی

Understanding the fundamentals of ownability of a property is important in distinguishing property from non-property. Since jurists of Imamiyah jurisprudence have no consensus on definition of ownability of a property and the Civil Law has not specified what the proper More

Understanding the fundamentals of ownability of a property is important in distinguishing property from non-property. Since jurists of Imamiyah jurisprudence have no consensus on definition of ownability of a property and the Civil Law has not specified what the property is by definition, the importance of understanding the fundamentals of ownability of a property has further come to light. This paper intends to find a unified criterion for validity of ownability of a property, analyze the criteria set by the jurists, and investigate the strengths and weak points of the expressed criteria. The criterion thus achieved helps distinguishing property from non-property in doubtful cases. Such power of distinction helps us in various issues since ownability is a matter of credibility and the right understanding of ownability and its attachments depends upon acquiring knowledge on credit concepts and its specifications. Therefore, this paper points to some instances of credits. The author of this paper is of the opinion that the major criterion for understanding ownability is the rational approach toward this subject and other criteria expressed are either problematic or abundant. The paper has finally discussed available solutions in case doubts appear in conventional and legal ownability of a property. Manuscript profile

Open Access Article

33 - Legal Investigation on Effects of Abstract Payment Undertakings
Fatemeh Behnam

Abstract payment undertaking is a form of unilateral legal act that upon formation creates mandatory undertaking on the issuing party and as far as the issuing party has not paid the certified fund to the beneficiary, he shall have no right vis-à-vis the beneficiary. Co More

Abstract payment undertaking is a form of unilateral legal act that upon formation creates mandatory undertaking on the issuing party and as far as the issuing party has not paid the certified fund to the beneficiary, he shall have no right vis-à-vis the beneficiary. Commitment to verification of documents, commitment to precision and good faith, commitment to informing the beneficiary about non-conforming cases and commitment to paying issuing party’s undertakings against beneficiary as well as rights resulting from violation of soundness, exactness, genuineness of instruments, and lack of committing fraud on one side, and the rights coming from subrogation in payment on the other side, are among the rights generated after payment of the certified fund by the issuing party with regards to beneficiary. As far as the beneficiary is yet to receive the certified fund, he shall have no undertaking toward the issuing party or the secondary bank. It is clear that after presentation of documents and payment of the fund by the beneficiary, the above-mentioned undertakings shall be attributed to him. Manuscript profile

Open Access Article

34 - U.S. Judicial Opinion on Civil Liability Resulting from Breaches in Privacy
Masoumeh Mazaheri Mahsa Jamshidi Shahmiri

Civil liability rights play a significant role in supporting privacy rights of people. Civil liability laws shall guarantee fair indemnification of losses sustained to people and shall prevent emergence of tort in the society. In U.S. law, along with conventional civil More

Civil liability rights play a significant role in supporting privacy rights of people. Civil liability laws shall guarantee fair indemnification of losses sustained to people and shall prevent emergence of tort in the society. In U.S. law, along with conventional civil liability, modern civil liability has clarified the fundamentals and pillars of various types of civil liability resulting from breaches in privacy. This paper, developed through descriptive-analytical method, reviews fundamentals, pillars and exceptions of various types of civil liability resulting from breaches in privacy in the legal system of the United States. Findings of the paper indicate that in the civil liability resulting from breaches in privacy, the U.S. legal system has duly recognized privacy right as an independent right and has accordingly established an integrated judicial procedure related to civil liability resulting from breaches in privacy. Manuscript profile

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