Jurisprudence and private law

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?

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.

Abstract 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.

Abstract 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. 

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.

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.