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Historical Review of Non-suspension Rule with an Approach to Mohaghegh Yazdi’s Opinions Criticizing the Famous Viewpoint ?????? ??????, ??? ??? ????; ??????, ???????; ?????, ???? ???
??? ? ???? ???? 51 ????? 1: ????? ????? ??6? ???? ???8
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Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (276.049 KB) | DOI: 10.22067/jfu.v51i1.45706

Abstract

According to the Shiite jurisprudence literature, non-suspension of contracts and unilateral legal acts is among the general rules of contracts jurisprudence and has been criticized by Shiite jurists in the last two centuries. The following are the main issues dealt with in this paper: historical background of non-suspension rule, its formation over time and its conversion into a general rule, introduction of the Shiite jurists who have contributed to this conversion, identification of the fields and trends of criticizing this rule, and given Sahib Orvah's special place in the criticism field and in offering particular jurisprudence opinions, discovering his role in criticizing the famous opinion and promoting a new one. The purpose of this paper is to clarify the above said issues through a historical and with a person-centered approach in order to introduce a part of Shiite jurisprudence history in the general rules of contracts jurisprudence area. Therefore, the present paper begins with subjectology of non-suspension rule in the Shiite jurisprudence literature from Mohaghegh Yazdi?s viewpoint and after trying to find out the background of this rule in the Shiite jurisprudence, explains Sahib Orvah?s opinion, its bases and his critique of the famous opinion.
THE STATUS OF SIRA (CUSTOM) AMONG THE EVIDENCES OF OPINIONS CONCERNING THE INFANT’S CONTRACTS دوره51 شماره3 سال1398 ????, ?? ?? ?????; ?????, ???? ???; ?????, ???????
??? ? ???? ???? 51 ????? 3: ????? ????? ??8? ????????8
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Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (566.852 KB) | DOI: 10.22067/jfu.v51i4.55570

Abstract

Sira, meaning the continued way and method, is a manifestation of custom which has in contemporary Usuli works gained an unprecedented place in the inference of religious rules and despite all efforts by Usulis to delimit its thematic aspects and the conditions of its authority, there are problems with its accurate and systematic application from the aspect of jurisprudential functions and a sort of diversity of opinions and disagreement is noticeable in this regard. This paper, through a case study method, has studied the status of the conduct of wise and the custom of the people of the religion among the evidences of opinions regarding the infant's contracts and after a quick review of semantics of Sira and infant and an overview of other evidences of opinions regarding the infants contracts, has attempted to give a report on the opinions of a number of Islamic jurists with regard to the status of Sira in declaring validity or invalidity of such contracts. The results of this research show that in applying Sira as evidence, a spectrum of opinions has emerged and their contradiction indicates considerable diversity among the jurisprudential commentators and more than ever, reveals the necessity of regulating the jurisprudential and Usuli thoughts in this regard.  
THE STIPULATION OF “RETURN OF THE ENDOWMENT OBJECT TO THE DONOR’S PROPERTY IN CASE OF NEED” AS A RESOLUTORY CONDITION IN THE ENDOWMENT CONTRACT A JURISPRUDENTIAL AND LEGAL STUDY دوره51 شماره4 سال1398 ?????, ??? ????; ?????, ???? ???; ??????, ????; ?????, ????
??? ? ???? ???? 51 ????? 4: ????? ????? ??9? ?????????8
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Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (560.198 KB) | DOI: 10.22067/jfu.v51i4.65641

Abstract

Different opinions have been presented regarding the validity or invalidity of an endowment in which the donor incorporates a condition under which in case of need, the endowment object returns to his property. The opponents of validity of this act either consider it void ab initio or believe that such act is in fact a surrender of property not endowment; since in any situation, endowment must be perpetual and the condition that the object returns to the donor contradicts the essential character of endowment and is against the requirements of endowment contract. The third category consider the endowment and the condition as valid. The origin of all of the above said theories is the issue of ?requirement of perpetuity in endowment contract? and the possibility of incorporating a resolutory condition therein. The present research, after studying the current jurisprudential opinions in this connection and accepting the theory of non-requirement of perpetuity in endowment, has proven the correctness of ?the validity of endowment on condition that the endowment object returns to the donor's property in case of need? and by examining the concept of resolutory condition in law has considered it as applicable to the condition incorporated in endowment contract and the authors believe that based on the theory accepted in Islamic jurisprudence, it is permitted to incorporate a resolutory condition in the endowment contract and  the condition of return of the object to the donor in case of need is its most obvious instance.
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