Jurisprudence and private law

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.

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.

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.

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.

Abstract 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.

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.