A Study of Defining Law for the Activities of an Unsound Network Marketing System
Bībī Raḥīma
Ibrāhīmī
author
Ḥusayn
Nāṣirī Muqaddam
author
Muḥammad Taqī
Fakhla‘ī
author
Sa‘īd
Muḥsinī
author
text
article
2012
per
Network marketing is a sale distribution method based on profiting plans and the unsound network marketing is its deviated form. In this system, recruiting members suffices and according to the pyramidal plans that the company presents, the recruited person’s capital would be divided among the founder, the individuals on top and near the top of the pyramid, and the sponsor. Every person finds a chance to achieve a higher position in the pyramid by expanding
their subsets. In this marketing, there is only one contract in the form of “payment of reward for attracting members.” The present paper concerns with an examination of the defining law for such activities and tries to analyze its permissibility or prohibition according to the Sunnī and Shī‘a arguments.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_26840_36ee1f0a8b0afef080f47760487ee412.pdf
dx.doi.org/10.22067/fiqh.v1i1.4160
The Role of the Wasting and Causation Rules in Environmental Civil Responsibility
‘Alīriḍā
Intiẓārī
author
Sayyid Muṣṭafā
Muḥaqqiq Dāmād
author
text
article
2012
per
Pollution and destruction of environment and the resulting damages is one of the basic perplexities of modern industrial and urban societies and one of the most essential issues dealt with in environment rights. Thus, given the necessity of indemnification for any damage and loss in most of the legal systems, the study, assessment, and discussion of civil responsibility arising from environmental damages would enjoy a superior status in law. Similarly, in Islamic law there are general principles and rules concerning indemnification and civil responsibility that contain many of the basic functions of civil responsibility. These general rules of
remuneration are manifested in such rules as itlāf (wasting), tasbīb (causation,), lā ḍarar (no harm), etc. which construct another important part of jurisprudential principles of environmental civil responsibility. In this writing, some of the most important rules that can justify the environmental indemnification and civil responsibility in Islamic law are put to discussion.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_26871_7a461fd1db907e9af32e1469aa693514.pdf
dx.doi.org/10.22067/fiqh.v1i1.7909
A Deliberation on Article 873 of Civil Law (Generalization of the Inheritance of the Drowned and those Buried under Debris to other Ambiguous Deaths)
Muḥammad
Barārī Lārīmī
author
Muḥammad
Muḥsinī Dihkalānī
author
text
article
2012
per
The condition for the legatees inheriting from their legators, as asserted in the first part of article 875 of civil law, is that the legatee is to be alive when the legator dies. Therefore, for someone to inherit from another person, his or her being alive is to be certified at the time of the legator’s death. However, article 873 of civil law, in accordance with civil jurisprudence, has excluded (excepted) the case in which the cause of death is drowning or destruction, from the decree of the rule of non-inheritance of the two persons whose
priority or posteriority of death is ambiguous and regarded each one of them as the inheritor of the other. At the same time, the two above-mentioned exceptions contradict the general principle governing inheritance in jurisprudence and law. Accordingly, some questions comes one’s mind, the most important of which concerns the criterion for the inheritance ruling which has caused the above two cases to be regarded as exceptions; and also, whether this ruling is fit to be generalized to similar cases in which the priority and posteriority of the persons’ death is ambiguous.
Given the significance of the issue and the necessity for its comprehensive and clear explanation, the present research has, by referring to the Sunnī and Shī‘a legal texts through comparative study of Islamic law, tried to critically review the viewpoints of the renowned majority of the jurists who have a restrained interpretation of the evidence, and by way of weakening their evidences and strengthening the opponents’ view, highlighted the necessity of amending the article 873 of civil law.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_26943_aa6d61bd38c3d5e49b9e244b2b7cc6cc.pdf
dx.doi.org/10.22067/fiqh.v1i1.9492
A Legal Research in the Issue of the Retaliated Punishment (Qiṣāṣ) of a Mother for Murdering her Child
Muḥammad Ḥasan
Ḥā’irī
author
Murtaḍā
Murādī Gulistānī
author
text
article
2012
per
According to the viewpoints of the two major sects (Shī‘a and Sunnī) and the article 221 of the Islamic penal law, the verdict of retaliation (qiṣāṣ) in deliberate murder does not apply to a father who has murdered his child; however, according to the generally accepted view of the Imāmiyya, the mother is not excluded from this verdict and is retaliated in qiṣāṣ for murdering her child.
Setting forth and examining the legal evidences of both viewpoints, the writers of this article have to a great extent regarded the exclusion of the mother from this verdict as justified and defendable with respect to the evidences.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_27014_b5712818cd44f93e666bf926c6078331.pdf
dx.doi.org/10.22067/fiqh.v1i1.12508
Reappraisal of Renunciation of Ownership in Jurisprudence and Law
Ḥusayn
Ḥaqīqatpūr
author
text
article
2012
per
The issue of renunciation (i‘rāḍ) is not discussed separately among the jurists and is only implicitly referred to in some instances. It is also neglected in statutes; and most of legal experts, following the
laws and like jurists, have not talked in detail on this issue. Discussing the nature of renunciation, we seek here to elucidate a rather complicated issue, namely, the impact of renunciation. As far as we know, the dominant view among the Imāmī jurists is that renunciation as a legal act is not confirmed by the lawmaker. However, in nearly all instances, the legal experts have opined for the legitimacy of renunciation without having mentioned any justified basis. We presume that renunciation is a legitimate unilateral obligation (īqā‘) and results in the termination of ownership. In this case, the property in instances other than spoils of war is subsumed under the permissible (mubāḥāt).
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_27047_7973cce20cbfd33bb43e4419a34b1292.pdf
dx.doi.org/10.22067/fiqh.v1i1.3912
Critical Review and Analysis of Legal Opinions concerning the Rule “The Usurper is Confronted most Severely”
Abulfaḍl
‘Alīshāhī Qal‘ajūqī
author
text
article
2012
per
The Islamic law considers people’s financial affairs as important and has devised special rules for it so that the citizens may live under their protection. Strictness on the usurper of other people’s properties is part of these rules so that no one would dare to encroach upon other people’s properties. This strictness in confronting the usurpers of
rights is implied from the traditions and rulings issued on usurpation. The rule al-ghāṣib yu’khadhu bi ashshaqq al-aḥwāl (the usurper is confronted most severely) is regarded as double accountability and severe punishment for the usurper.
Besides the significant points of this rule, three basic questions are to be answered: First, is this rule brought up as a legal rule or not? Second, what are the viewpoints of the opponents and proponents and what are the evidences for its validity? Third, to what extent can the evidential and applicable domain of this rule be regarded to be?
By proving the rule and its applicability in jurisprudence and law, this research attempts to uncover backings for it such as traditions, religious law taste (madhāq), proportion of ordinance and subject, intellectuals’ stipulation, and enjoyment of two obligatory rulings. On the basis of this rule it also tries to prove for the usurper such domains as immediate return of the property, giving no respite to the usurper even in case of indigence, payment of maintenance expenses even in case of increase in the price of the original usurped property, payment of rigorous and high costs of transportation, and compensation for the profits, whether earned or unearned.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_27090_522f5c6688086df7083e01c1a4173891.pdf
dx.doi.org/10.22067/fiqh.v1i1.3237
Analysis of the Legal Nature of Lease Documents
Jalīl
Qanavātī
author
Marḍiya
Dāvarī Langarūdī
author
text
article
2012
per
Among the important discourses in financial law are the issues related to financial institutions. Going through these issues are of considerable significance in Islamic law since the lawmaker prohibits specific types of transactions – usurious, risk taking, harmful. Enquiry into the legitimacy and nature of new financial products is among the important ventures of Islamic financial law.
One of the new financial tools is the lease documents (sukuk). Analysis of the legal nature of these documents – as a novel contract – is of importance because it has been unprecedented in Iranian legal surveys and its legitimacy, nature, descriptions, and repercussions have not been sufficiently examined. In this article, the technical features, legitimacy, nature, and legal repercussions of these documents are reviewed and analyzed.
Given the similarity of the ordinances of these documents with lease contract and the possibility of their comparison with contract by compromise (‘aqd ṣulḥ), while explaining some of the differences of these documents with lease contract – including distinction between the volition of the two parties to a transaction and some ordinances – and by accepting the difference between contract by compromise and article 10 of civil law, the lease documents contract was eventually confirmed and its legal repercussions were analyzed as a new and legitimate contract by virtue of the principle of general permissibility
under article 10 of civil law.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_27129_e089d7c49320e7fad0a90324dc27cc4b.pdf
dx.doi.org/10.22067/fiqh.v1i1.13052
The Impact of Obligation to Assignment of Ownership (Tamlīk) in Imāmī Jurisprudence and Iranian Law
Ismā‘ī
Nimatullāhī
author
text
article
2012
per
In ordinary cases, the object of transaction in such contracts as sale (bay‘) and lease (ijāra) has financcial value like property (‘ayn) or profit, or physical action. However, whether obligation to performing an action has a financial value and can be the object of transaction is a matter of debate. In adition, in cases in which the subject of the obligation is the assignment of ownership (tamlīk) of a specific or general property, the question arises as to whether the obligation causes the ownership or claim for the obligee regarding that specific or general property.
This article seeks to prove that the legal action has financial value and it can be taken as the object of transaction; however, such an action is normally actualized simply in the form of settlement of a claim (ṣulḥ) or an independent and anonymous contract as well as condition within the contract. Legal action, of course, has no direct financial value. For this reason, in cases in which the subject of the obligation is the assignment of ownership of a specific or general property, the
impact of such dealing is simply the appearance of duty to fulfill the obligation with its specific impacts. The appearance of this duty does not have any correlation with the appearance of the obligee’s ownership for that specific or general property or any debt to the value of the undertaken action.
Fiqh and Usul
Ferdowsi University of Mashhad
2008-9139
44
v.
2
no.
2012
https://jfiqh.um.ac.ir/article_27143_afe5b35bcbaff79bf831c5f40ea2bee4.pdf
dx.doi.org/10.22067/fiqh.v1i1.12507