Civil Jurisprudence Doctrines

scientific

Studying the Condition to Pay off the Debts and Expenses of the Founder of Waqf from the Profits of the Waqf Asset

Abdoeza Asghari; Mustafa Husseini; Gholam Reza Yazadani; Muhammad Husseini

Volume 13, Issue 24 , September 2021, Pages 3-22

https://doi.org/10.30513/cjd.2021.1102.1213

Abstract

One of the main issues in the waqf contract is the subject of the founder’s conditions and how to implement them within the waqf contract. According to the principle of Party ... Read More One of the main issues in the waqf contract is the subject of the founder’s conditions and how to implement them within the waqf contract. According to the principle of Party autonomy, the primary principle in waqf is that the founder (waqif) inserts every clause (which is not in opposition to waqf) within the waqf contract. One of clauses that are doubt about their validity and annulment (voidance) is the provision to pay off the debts and expenses of the founder of waqf from the profits of the Waqf Asset. In reality the question is this if it is possible a person establishes the waqf of properties and meanwhile stipulating within the waqf contract that the expenses and debts of him are paid off from the profits of the waqf asset. There are different opinions among the Islamic jurists and law scholars. Some of the Islamic jurists and law scholars believe that it is impossible for the founder of waqf to profit from his waqf and they say in this case both waqf contract and clause are void but some others believe that the waqf contract is valid but the clause is void. With applying the analytic-descriptive method and utilizing the library method, it is drawn conclusion from the paper that both waqf and clause is valid and there is no difference between waqf created for public and waqf created for special purpose and even it seems that the profits of founder from his waqf has no disagreement with the concept of habs (Arabic: حبس literally means to prevent, restrain) of the property and applying its profits to others which has been presented in Islamic texts and it can be said it is permissible (legal) by Islamic law. Because such provision is not in opposition to the nature of the contract and more over this act is in harmony with the soul of waqf and the holy Islamic law giver’s taste because constantly He emphasizes on the growth and facility (ease) of waqf. From the other side with accepting and validity of such provision, the founders with worry about their future life can establish the waqf of some of their properties and meanwhile not being worry about the expenses of their future life and their families and also their debts.

scientific

The Jurisprudential - Legal Analysis of Speeding up in the Execution of a Civil Judgment with Emphasizing on the Provisional Execution

Amir Entezari; Rasoul Maghsoudpour; Sayyed Muhsen Husseini Pouya; Ahmad Taji

Volume 13, Issue 24 , September 2021, Pages 23-50

https://doi.org/10.30513/cjd.2021.21.1003

Abstract

Ahmad Taji (Assistant professor at Islamic Azad University of Neyshābūr) It should be stated that the enforcement of the order is the ultimate goal of the process of procedure but ... Read More

scientific

The Financial Settlement of the Failing Banks and Credit Institutions with a Look to the Comprehensive Banking Plan

Ahmad Beygi Habibabadi; Hussein Pashaei

Volume 13, Issue 24 , September 2021, Pages 51-80

https://doi.org/10.30513/cjd.2021.39.1009

Abstract

The main reason of the financial crisises (failures) and credit institutions fails to fulfil their obligations. The ancient system strategy for overcoming this crisis is to use bankruptcy ... Read More

scientific

The Principle Being Adduceable in the Cases of Doubt in the Mandatory or Complementarity of the Legal Rules with Comparative Study in the Law of Egypt

Bizhan Haji Azizi; Hamed Khosravi; Yaser khosravi

Volume 13, Issue 24 , September 2021, Pages 81-108

https://doi.org/10.30513/cjd.2021.29.1004

Abstract

In the legal doctrine, it has been stated different criteria for distinguishing default rules from mandatory ones. But sometimes it is possible to be created doubt in the nature of ... Read More

scientific

Studying the Principles and Ordinances of Transactions of Another Person’s Property in Imamayeh Fiqh, the Law of Iran and the Law of England

Hamed Khubyari; Sayyed Muhammad Sadiq Tabatabaei; Ali Reza Arashpour

Volume 13, Issue 24 , September 2021, Pages 109-136

https://doi.org/10.30513/cjd.2021.444.1087

Abstract

Most law scholars and well-known Islamic jurists consider that the fudhuli (unauthorized) regulations are of the the general rules of the agreements (contracts) and have generalized ... Read More Most law scholars and well-known Islamic jurists consider that the fudhuli (unauthorized) regulations are of the the general rules of the agreements (contracts) and have generalized (spread) it to all types of the contracts. This broadness causes that some law scholars think that some fudhuli (unauthorized) rulings is in conflict with the public order. In contrast in the law of England as an excuse to maintain public order there are exceptions to the rule “the impossibility of transferring of title by the unauthorized person (a person has no ownership right)” and in some case the transfer of another person’s property is effective. Moreover, in the law of this country to facilitate the business affairs, the transaction of the agent acting without or outside his authority or the transaction of any person who pretends (claims) as an agent are effective. The disagreement between attitudes about efficiency of the legislation about the transfer of another person’s property originates from the difference of basics of “the transaction (sale) of another person’s property” in these two legal systems. In this paper with differentiating between the fudhuli (unauthorized) transactions of “mora’a” (meaning in the sale there is a right for the third person and the efficiency of the transaction relating to fulfil his right) and “moquf” (meaning ite efficiency relates to the consent of the true owner), it will be revealed that ineffectiveness of the recent transactions has been the theory “assigning the contract of sale to the true owner” and in the law of England the transaction of another person’s property is established in proportion to the ruling pursuant to the basics “agency resulting from ratification” and the Contract management (It’s a term which is used in the law of Iran and not explicitly in the law of England meaning: Contracting in situation that it does not conform to the accepted criteria (rules) by the legislature but the legislature for different social reasons is not going to announce its annulment).

scientific

Jurisprudential Correctness of the Taʻlīqi (Conditional) Liability with the Critical Analysis of The Articles 691, 699 and 700 of the Civil Code of Iran

Hadi Khoshnaghsh; Muhammad Adibi Mehr

Volume 13, Issue 24 , September 2021, Pages 137-162

https://doi.org/10.30513/cjd.2021.305.1060

Abstract

One of the jurisprudential challengeable issues is the problem of the requirement of tanjiz (Arabic: تنجیز being unconditionally operational) in the Islamic contracts and according ... Read More

scientific

The Impact of Implementing Sanction by the Party of the Six Countries (5+1) in the Joint Comprehensive Plan of Action in Exercising the International Upstream Oil Agreements from the Point of the View of Iran’s Legal System

Farhad Rohani; Sayyed Nasrollah Ebrahimi; Mojtaba Zahedian; Sayyed Mohsen Husseini Pouya

Volume 13, Issue 24 , September 2021, Pages 163-190

https://doi.org/10.30513/cjd.2020.488.1097

Abstract

Does the violation of the Joint Comprehensive Plan of Action (JCPOA) because of withdrawing or claiming of violation and subsequently to implement sanctions again cause to the exemption ... Read More Does the violation of the Joint Comprehensive Plan of Action (JCPOA) because of withdrawing or claiming of violation and subsequently to implement sanctions again cause to the exemption or suspension of oil industry in upstream area? It is a disputable subject that if the exercising of sanctions are instances of force majeure or it is counted of the difficulty of practicing the agreement. The main provision for occurring the force majeure is to be the happening foreseeable and to be uncontrollable. Pursuant to the content of the paragraph 14 and 15 of 2231 resolution of the UN Security Council, the applied sanction is effective to the contracts signed after the date of sanction. The occurrence of sanction cannot merely result the happening of force majeure because if the sanction is predictable, it cannot be of the instances of the force majeure. In this circumstance it can be said that the sanction can be considered of instances of the difficulty of the implementation of the agreement. In Articles 227 and 229 frustrations of contract has been mentioned and in the law of Iran it is accepted. But what has been stated under Articles 227 and 229 merely observing frustration of contract (refers to a particular way in which contractual obligations can be discharged) subsequently it will be the material damage of the subject of responsibility which the force majeure makes it occur which in the oil contract the material damage has not happened because this kind of the oil contracts is ongoing. For this reason in the recent amendment (the regulations observing the conclusion and performance of oil agreements) it has been explicitly stated that it should be observed the paragraphs 14 and 15 of 2231 resolution in the situation of drawing up agreement (contract) this subject indicates that it is not any more considered as one of instances of force majeure in the upstream oil agreements .Therefore, it is necessary to observe sanction as of instances of difficulty to perform the agreements that it leads to regulate the agreement.

scientific

Reviewing and Analyzing the Famous Opinion and the Civil Law about Fudhuli (Unauthorized) Sale Based on the Maxim “Contracts Follow Intentions”

Zeinab Sanchouli; Muhammad Reza Kaykha

Volume 13, Issue 24 , September 2021, Pages 191-214

https://doi.org/10.30513/cjd.2021.1426

Abstract

Fudhuli (unauthorized) sale has been formed in two types: sale for himself (thief and usurper) and for the owner. The civil law with following the well-known Islamic jurists, the mentioned ... Read More

scientific

The Examination of the Capacity of the Authorization in Establishing Right for the Authorized Person

Muhammad Salehi Mazandarani; Ali Javadieh

Volume 13, Issue 24 , September 2021, Pages 215-238

https://doi.org/10.30513/cjd.2021.23.1001

Abstract

The authorization which basically causes permissibility (Arabic: اباحه) for the authorized person has an unstable nature which with the revocation of the authorizer (in the condition ... Read More

scientific

The Abdication of the Ruler by God’s Command in Islam Public Law; Investigation for possibility, Obligations and Requirements

Hamid Reza Safaei Ovandari; Sayyed Mohsen Ghaemi Khargh

Volume 13, Issue 24 , September 2021, Pages 239-260

https://doi.org/10.30513/cjd.2020.172.1041

Abstract

Government formation and the basis of being against the situation of anarchy (the absence of government) and from one side the separation of “government” and “ruler ... Read More

scientific

The Jurisprudential Study of the Nature of the Postpaid Landline Phone Subscription Contract

Muhammad Ghanbarzadeh; Ali Akbar Izadifard; Saeed Ebrahimi

Volume 13, Issue 24 , September 2021, Pages 261-288

https://doi.org/10.30513/cjd.2021.158.1037

Abstract

The phone subscription agreement is one of the most important contracts between the subscriber (customer) and telecommunication companies to receive the communication services ... Read More

scientific

The Legal - Jurisprudential Examination of the Role of Will in the Agreements between Parents with Custody Issue

Majid Reza Kamali Banyani; Dawood Nasiran; Sayyed Muhammad Hadi Mahdavi

Volume 13, Issue 24 , September 2021, Pages 289-312

https://doi.org/10.30513/cjd.2021.318.1064

Abstract

Before the enactment of The Family Protection Act of Iran (1391), the agreements for the acceptance of the right of custody or to pay special privilege to other parent takes place they ... Read More

scientific

The Inexplicit Stipulations of the Validity and Reliability of the Condition in the Civil Code

Reza Maghsoudi; Sayyed Mostafa Muhaghigh Damad; Sayyed Mahdi Allameh; Ali Reza Mazlum Rahni; Hormuz Asadi Koohbad

Volume 13, Issue 24 , September 2021, Pages 313-340

https://doi.org/10.30513/cjd.2021.1229.1241

Abstract

Article 190 of the Civil Code of Iran about the basic provisions of the validity of transactions and about agreements has been independent and primary (principal) and the legislation ... Read More

scientific

Studying the Exemplification of the Consumption of the Majority of Properties in Charities for the Adventitious Prodigality with a Look to Imamayeh Fiqh

Hussain Yousefifar; Hussein Ahmari; Ali Vaez Tabasi

Volume 13, Issue 24 , September 2021, Pages 341-360

https://doi.org/10.30513/cjd.2021.266.1053

Abstract

The consumption of all or majority of properties in charities by some people is of the issues that there are different opinions about inserting it to the adventitious prodigality for ... Read More

Editorial

Journal ID

Volume 13, Issue 24 , September 2021

Volume 17 (2025)

Volume 16 (2024)

Volume 15 (2023)

Volume 14 (2022)

Volume 13 (2021)

Volume 12 (2020)

Volume 11 (2018-2019)

Volume 10 (2017-2018)

Volume 9 (2016-2017)

Volume 8 (2015-2016)

Volume 7 (2014-2015)

Volume 6 (2013-2014)

Volume 5 (2012-2013)

Volume 4 (2011-2012)

Volume 3 (2010-2011)

Volume 2 (2009-2010)

Volume 1 (2008-2009)

Volume & Issue: Volume 13, Issue 24, September 2021, Pages 1-392

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