Juridical Doubt-ology And Primitive Principle Regarding Electronic Contracts
Mohammad ali
Khademi Koosha
Assistant Professor, Islamic Science and Culture Academy
author
text
article
2015
per
In spite of numerous domestic and international trades that are concluded under E-contract's regulations in cyberspace, there are still flaws regarding the conformability of many legal rulings and decrees with juridical principles. Consequently, these imperfections cause some questions. Accordingly, by acknowledging those questions, this article will discuss the primary principle applicable to the E-contracts from a jurisprudential point of view. Some of those probable questions are: what would be the demand of the primary principle if we suspect that the electronically nature of E-contract, or some conditions or components which are absent in the contract, may invalidate it? The outcome of this article acquires a good knowledge about the existing or possible questions in future regarding E-contracts. The main goal of this paper is to grant the first steps in solving legal and jurisprudential problems of this kind of contract. Studying the primary principle will provide a jurisprudential foundation where no other authentic argument could be attained.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
7
30
https://jf.isca.ac.ir/article_22660_bd263f7cfa0316992040bae285ffe069.pdf
dx.doi.org/10.22081/jf.2015.22660
An Analytical Study Concerning the Nature of "Connotation" from the Grand Āyatullāh Borūjerdī's Perspective
Seifollah
Sarrami
Assistant Professor, Islamic Science and Culture Academy
author
text
article
2015
per
Āyatullāh Borūjerdī has an exquisite viewpoint regarding the nature of Connotation: firstly, Āyatullāh Borūjerdī holds that Connotation – unlike Enunciation which is strictly dependent on the invention – is comprehended from the implications caused by the conditions of the speech. Hence, he subcategorizes the Connotation under the rational principles which run in volitional acts. Secondly, he reckons the Uṣūlī's dispute here a major dispute. Thirdly, he attributes his stance to the former Uṣūlī scholars, and thereon, he criticizes Shaykh Anṣārī and his succeeding scholars. All these three ideas are reviewed in this paper. This study also compares Words Employment Theory in Uṣūl al-fiqh with the Theory of Speech Acts in the philosophy of language. Āyatullāh Borūjerdī's advertence to the behavioral aspect of the Words Employment is the subgrade of this comparison.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
31
54
https://jf.isca.ac.ir/article_22661_80ac2316370bf77b1a6d5c5f36c1b598.pdf
dx.doi.org/10.22081/jf.2015.22661
Murderer's Criminal Liability When Confessions Contradict
Esmaeil
Agha Babaei Bani
Assistant Professor, Islamic Science and Culture Academy
author
text
article
2015
per
According to a notable juridical opinion, where a person confesses to a murder, and then another person confesses to the same murder consequently, if the former confessor backtracks, both of them will release from bearing retaliation or paying blood money. In this case, the blood money will be paid off from the Muslim's treasury.Elimination of this dictum from the Iranian Islāmic penal code of 1392 (SH), without posing any clear alternative suggestion, has ended up to the lack of legislation. Since recourse to the Fiqh is anticipated as a resolution in the cases where law is silent, the aforementioned juridical solution is pertinent to be reflected upon. Through juridical study and along with criticizing the legislator's approach to this topic, this paper concludes that despite of reputation of this juridical concept it is vulnerable. Though, the unnoted judgment (Fatwā) which reveals voluntary action also has some disadvantages. Therefore, the confession which is free of any inaccuracy is the one which should bear the burden of responsibility.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
55
74
https://jf.isca.ac.ir/article_22662_08895058a393927c0bee249d25092b56.pdf
dx.doi.org/10.22081/jf.2015.22662
The Nature of Retaliation
Ali Asghar
Afshari
دانشگاه تهران
author
Seyyed Mehdi
Hosseini Bayan
حوزه علمیه قم
author
text
article
2015
per
There is a question that if an expropriator or debtor decides to reimburse his/her liability following the owner's retaliation, is it legitimate for him/her to claim the retaliated money or object and return the property to its owner in exchange? In another word, is it possible to validate the exchange of the properties without going through any contract? The answer to this question is contingent upon how we interpret the nature of retaliation. If retaliation is categorized as Badal al-hayloolah (substitute of equal value given by expropriator), there would be no need for conducting a new transaction, but, if retaliation is construed as some type of transaction, no doubt that a new transaction and contract would be necessary to take place preceding to the exchange of the properties. Each of these two views has its advocates among the scholars. Yet, there are scholars who take a moderate position. This paper, in the first place, invalidates and rejects all arguments proposed by those views. And secondly, by discussing the traditions on retaliation, and based on their absoluteness, supports this idea that retaliation is a transaction per se. Definitely, realization of this transaction is subject to the intention of the retaliator for a complete ownership of the money or the object.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
75
102
https://jf.isca.ac.ir/article_22663_eb7d9d922eda82401f52c4e7c7e8fcbb.pdf
dx.doi.org/10.22081/jf.2015.22663
A Research on the Intrinsic Authenticity of Certainty in Usūl al-Fiqh
null
null
null
author
Seyyed Mohammad Mehdi
Ahmadi
دانشگاه آزاد اسلامی قم
author
text
article
2015
per
There are at least three meanings for the term authority (Al-Hujjīyyah) regarding "authority of certainty": A- the intermediate term in an analogy; B- Revealability (Presentivity); C- Justifiability and incontrovertibility. Shaykh Anṣārī holds that the first meaning cannot be assigned to the Certainty. Regarding the second meaning, there are four opinions among Uṣūlī scholars: The first view maintains that Revealability (Presentivity) - as Isagoge's essential - is constituent of Certainty. According to the second view, Revealability (Presentivity) forms the whole nature of Certainty. The third view insists that Revealability (Presentivity) is a concomitant to the Certainty. And according to the last view, Revealability of Certainty is not acceptable. There are also five views respecting the third meaning: A- Justifiability and incontrovertibility are intrinsic to the Certainty. B- Justifiability and incontrovertibility are intrinsic concomitants to the Certainty. C- Justifiability and incontrovertibility are just rational judgments. D- Justifiability and incontrovertibility are conventional notions. E- Justifiability and incontrovertibility are subordinate to the mastery. This paper studies and analyses these views. Authenticity of Certainty has a close correlation with Fiqh, since, due to the "intrinsic authenticity of certainty" viewpoint, prohibiting from following Certainty is impossible. However, there are cases in the Fiqh that the Certainty which is caused from Uncertain Perception is disregarded. Definitely this opposition is in contrast with the Intrinsic Authenticity of Certainty.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
103
130
https://jf.isca.ac.ir/article_22664_39c4b7ea6745323a5cc3237ce5bfe570.pdf
dx.doi.org/10.22081/jf.2015.22664
Criticizing the Theory of Authenticity of Single-Narrator Ḥadīth Regarding Human Life
Mohsen
Haji Zadeh
دانشگاه مذاهب اسلامی
author
Abedin
Momeni
دانشیار گروه فقه و مبانی حقوق دانشگاه ادیان
author
text
article
2015
per
The importance of the authenticity of single-narrator ḥadīth, or it's nonauthenticity, regarding "human life" is due to two points: first, the behavior of the divine about the necessity of the observation of precaution regarding "human life", which is one of the given principles of Sharī'ah, and second: the fact that the jurists' opinions in some cases of the unprotected (outlaw) - which are the most explicit case in "human life" issue – are totally based upon the single-narrator tradition. Therefore, it is very vital to discuss authenticity scopes of the single-narrator tradition and see if it is backed by any comprehensive argument so that could embrace "human life" momentous issue. Answering this question compelled the authors to make a deep reflection and immense investigation through the pertinent arguments. This paper, through an analytical-descriptive method and along with a problem-oriented approach comes to this result that single-narrator traditions are not reliable where "human life" concerns. Invoking to the sanes' conduct, necessity of taking heed regarding "human life", and observing the mechanism of the maqāṣid-based (objectives-based) fiqh, are parts of the chosen evidences of the authors.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
131
156
https://jf.isca.ac.ir/article_22665_280bc2a7816dbb12ea98c849c96a507c.pdf
dx.doi.org/10.22081/jf.2015.22665
Juridical Fundamentals of Job Security from a Qur’ānic Perspective
Tayyebeh
Balverdi
دانش آموخته دکتری فقه و مبانی حقوق اسلامی پردیس بینالملل دانشگاه فردوسی
author
Mohammad Sadegh
Elmi sola
استادیار دانشگاه فردوسی مشهد
author
Mohammad Hassan
Haeri
استاد دانشگاه فردوسی مشهد
author
text
article
2015
per
Deducting Legal and juridical issues from the Qur’ān, interpreting the Qur’ān, and Qur’ānic based juridical researches depend on practical and theoretical bases. Occupation is among juridical and legal subjects which are noticed in the Qur’ān. Job security is one of the aspects of occupation. This paper explains the Qur’ānic verses and juridical notions associated with job security and describes the relations between them. Moreover, this paper will clarify the origin of the job security in the Qur’ān through investigating the role of job contracts, contract period, wage, and job satisfaction in acquiring job security. We can pose some Qur’ānic verses like "Keep your agreements", "... on condition that you hire yourself to me for eight years", and "Had you wished, you could have taken a wage for it," as the bases and grounds for job security. Despite the fact that jurists' perceptions differs from those arguments to some extent, still, each argument explicitly can be regarded as a testimony to the eminence of the job security in the employment contracts.
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
157
188
https://jf.isca.ac.ir/article_22666_b3940d222d8bf18a3b871ffa98f29863.pdf
dx.doi.org/10.22081/jf.2015.22666
خلاصة المقالات
mohammad housein
hekmat
پژوهشگاه
author
text
article
2015
per
Fiqh
Islamic Propagation Office, Qom Seminary
Islamic Sciences and Culture Academy
1735-3181
22
v.
83
no.
2015
189
198
https://jf.isca.ac.ir/article_22747_1dd9d8e3fc53a26921ac40e2e0bf64ed.pdf
dx.doi.org/10.22081/jf.2015.22747