Selling Bills
Fakhruddin
Asghari Aghamshahdi
Professor of Private Law Department, Faculty of Law and Political sciences, University of Mazandaran.
author
Hossein
. Bahrami
. Ph.D. Student in Private Law
author
text
article
2016
per
The opinions differ about the validity and nullity of the selling of bills. Some jurists consider it void and others allow it. Since the bill is considered property, object and countable and its selling has rational benefit in some cases, the present article considers its selling as valid. However, if the motive of such sale is escaping from usury loan, it will be considered formal and null. As in most cases selling bill is for escaping from usury loan, this appearance has priority. Hence, the person who claims the validity of the sale should prove its contrary.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
1
21
https://law.tabrizu.ac.ir/article_6693_897705acb9f58ad75e121e431c889668.pdf
The Study of Attribution of Validity and
Irrevocability of Sale by Conduct to Sheikh Mofid
haidar
bagheri asl
Professor, Law Department, University of Tabriz.
author
text
article
2016
per
One of the current transactions between people is sale by conduct so that its illegitimacy causes problems and dilemma in Islamic society because most of the dealings between people are done by conduct. Although legislature has noticed this necessity and has incorporated and accepted legitimacy of sale by conduct in article 338 of civil law, jurisconsults have expressed numerous theories in the nature of sale by conduct and all of them are in contrast with this article of civil law. The only conforming theory with this article is the theory of Sheikh Mofid in validity and irrevocability of sale by conduct. But the problem of this theory is that well- known jurisconsults have expressed doubts and denied it and consequently they have interpreted the sale by conduct to invalid sale or permissiveness in restrictive and unrestrictive use or unstable transfer of property and they have created four theories against the Sheikh Mofid theory. This article is an attempt to prove the attribution of validity and irrevocability of sale by conduct to Sheikh Mofid and make clear the reasons of this theory with the method of using library and inferential analysis of juridical texts and sources.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
23
48
https://law.tabrizu.ac.ir/article_6694_c37b22befe5e2526135e04057a6a62c5.pdf
Prohibition or Non-prohibition of Non-Muslims’ Inheritance from Muslims: A Critical Study
Alireza
Pouresmaeili
Hakim Sabzevari University
author
text
article
2016
per
In all schools of Islamic jurisprudence, heresy is among the things that prevent inheritance; thus, an infidel (Non Muslim) heir does not inherit from a Muslim testator; however, there is still controversy over the inheritance of a Muslim heir from an infidel testator among jurists. Sunnis believe that Muslims do not inherit from disbelievers, arguing that with the presence of Muslim heirs, even among the distant relatives of the deceased, an infidel heir is not entitled to inheritance. Shia (Shīʿah) jurists, however, are persistent about the inheriting of the Muslims from infidels. That heresy prevents inheritance and Muslims are entitled to inherit from infidels had been ignored, either intentionally or unintentionally, when the inheritance law was incorporated in the Civil Code. The legislators, however, after a lengthy delay, declared that a Muslim heir is entitled to inherit from an infidel testator by adding the article 881 of Civil Code, ceasing the disputes among jurists. This paper seeks to explain why at the time of drafting the Civil Code the legislators did not regard the heresy as an obstacle of inheritance, and whether or not the addition of article 881 of Civil Code or the amendment of the law was an appropriate act.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
49
82
https://law.tabrizu.ac.ir/article_6695_90def3e51b80b34172e3ff45acdf1265.pdf
A Study of the Effect of the Intention of Heirs on Rules Governing Inheritance
Reza
Sokouti
Law Professor, Tabriz University
author
Mohammad taghi
Alavi
Law Professor, Tabriz University
author
Mohammad reza
Rashidi ahmadabadi
L.L.M, Tabriz University
author
text
article
2016
per
It must be said that jurists and lawyers generally believe that intention has no effect on rules governing inheritance and these rules are unchangeable because they consider them as mandatory norm. Subsequently, whenever devisor or heir applies his/her intention on these rules, it has been rejected. Heirs would be able to change some of these rules in different ways, for example, by renunciation or transmission of share of inheritance. Actually in many cases these actions are compatible with legal maxims, thus it is unacceptable to revoke these actions based on stereotyped phrases. At first it’s necessary to recognize different forms that heir would be able to apply his/her intention on these rules and secondly ascertain special legal natures of them. After the investigation of lawyers and jurists' point of view we endeavor to validate such actions according to their legal natures in order to prevent the violation of the person rights.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
83
115
https://law.tabrizu.ac.ir/article_6696_a7ae77211d3ce2ee859ce0b9258d88dd.pdf
The Study into the Effects of the Financial and Non-financial Actions Law in Islamic and Iranian Law
Mahsa
Gamami
Associate Professor, Faculty of Law and Political sciences, Tehran University
author
Seyed Hossein
Asadi
Ph.D student in Private Law, Faculty of Law and Political sciences, Tehran University
author
text
article
2016
per
At the time of submission of petition, it must be specified if the action law is financial or non-financial. The wrong type of lawsuit is a case of failure and the final diagnosis is by the court. Division of action into financial and non-financial, as a legal division, has meaning and legal effect. In jurisprudence texts, the difference is between financial and non-financial cases, the capacity to claim of plaintiff and the defendant, the quantity and quality of the testimony of a witness, confession and oath performance. However, the statute does not pay enough attention to differences between the financial and non-financial actions law.Thus, in this paper, the most important recognition of the financial and non-financial actions will be analyzed.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
117
148
https://law.tabrizu.ac.ir/article_6697_82a31ba3807b4e5eb69932d1c73c4cd9.pdf
Equal Status of Fathers and Grandfathers as Guardians
Hamid
Masjed Saraei
Associate Professor, University of Semnan
author
Rasoul
Mousavi
Ph.D student in Islamic Law, Semnan University
author
Zahra
Feiz
Academic staff, Payam Nour University
author
text
article
2016
per
In light of Islamic Jurisprudence and Iranian legal system, fathers and grandfathers have been recognized as natural guardians and both enjoy an equal status. However, if father and grandfather are simultaneously engaged in this legal act, conflict is likely to occur. to resolve this conflict, Islamic jurists have suggested various theories. Some have given the priority to the grandfather and some assigned the priority to the father. Careful study of the opinions of these two groups indicates that neither of these positions is acceptable, and assigning priority to father or grandfather is determined by some factors. The present articles deals with a number of conditions and factors which should be taken into account in resolving the conflict.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
149
173
https://law.tabrizu.ac.ir/article_6698_842d17f9e1f11176940fd28b3950348d.pdf
Conditions and Rules of Repealing Laws
Egbal Ali
Mirzaei
Associate Professor, Faculty of Social and Humanities , Kurdistan University
author
text
article
2016
per
By repealing a law it ceases to be valid and its life terminates. Abrogation is the usual way to suppress the domination of law. Hence, legislation or rogation is the normal form of making law. Therefore, repealing and enacting law are subject to the same rules.In traditional approach, abrogation has two forms: explicit and implicit. This article attempts to amend this theory. Abrogation is only explicit and it occurs when legislator specifies the repealed law. Also legislator can exclusively repeal law so that he can enact. Moreover, statutes or enacted laws may be specifically repealed. But when judge cannot reconcile two conflicting laws, his main task is to override one of them. Regarding the purport of laws and arguing in persuasive manner are the exclusive way to proclaim tacit abrogation or predomination of it. Indeed judge has no authority to rescind law. Therefore, implicit repealing is a matter of construction and metaphorical expression.
Jurisprudence and Islamic Law
University of Tabriz
2821-0891
7
v.
13
no.
2016
175
215
https://law.tabrizu.ac.ir/article_6699_4ab856640c662365c7d0331742303570.pdf