Civil Jurisprudence Doctrines

scientific

Civil Liability of the Primary Contractor in the Event of Delegating Obligations in Imamiyyah Jurisprudence and Iranian Law

Seyed vahid sadeghi; Muhammad Mahdi Al-sharif

Volume 16, Issue 30 , December 2024, Pages 5-32

https://doi.org/10.30513/cjd.2023.4929.1836

Abstract

In many hiring of persons contracts, the hireling delegates the performance of the obligation to a third party. For instance, a contractor who has undertaken a large-scale project may ... Read More

scientific

Critical Evaluation of Article 24 of the Law on the Enforcement of Financial Sentences

Yasser Tak fallah; abolghasem morshedi

Volume 16, Issue 30 , December 2024, Pages 33-60

https://doi.org/10.30513/cjd.2024.4942.1841

Abstract

Article 24 of the Law on the Enforcement of Financial Sentences specifies seven examples of debt exclusions; properties not liable to be distraint for debt, which the legislator has ... Read More

scientific

The Role of Considering Private Law as “Constructive” in Solving Its Challenges

Reza Daryaei

Volume 16, Issue 30 , December 2024, Pages 61-88

https://doi.org/10.30513/cjd.2024.5299.1885

Abstract

The notion that law is a realm of constructive case is considered one of the most fundamental aspects in understanding and addressing legal issues. Despite the high use of this proposition ... Read More

scientific

Civil Liability of the Bank Regarding Safe Deposit Boxes: A Case Study of the Robbery at the National Bank Dānishgāh Branch

Jafar Zanganeh Shahraki; Seyed Mostafa Milani

Volume 16, Issue 30 , December 2024, Pages 89-111

https://doi.org/10.30513/cjd.2023.4827.1812

Abstract

The provision of safe deposit boxes is one of the services that banks offer to their customers. The bank’s civil liability for any damage to customers’ assets stored in ... Read More

scientific

A Jurisprudential and Legal Reassessment of Waiving the Right of Pre-emption Before Sale by the Person Exercising the Right

Mohammad Ali Saidi; mahdi miry; farzaneh karami; Hojjat Pooladin targhi

Volume 16, Issue 30 , December 2024, Pages 113-135

https://doi.org/10.30513/cjd.2023.4704.1792

Abstract

In Imāmiyya jurisprudence, there are three different views regarding the possibility of waiving the right of pre-emption before the sale (Arabic: إسْقاط حَقُّ الشُّفْعة ... Read More

scientific

Feasibility of Revocation in Spousal Donations Based on Jurisprudential Teachings (A Critique of Article 803 of the Civil Code with Proposed Amendments)

Amin Soleyman Kolvanaq

Volume 16, Issue 30 , December 2024, Pages 137-159

https://doi.org/10.30513/cjd.2023.5212.1879

Abstract

The Civil Code considers in Article 803, the presumption principle in the contract of gift (Arabic: اَلْهِبَة, Romanized: al-Hiba) to be permissible, and it states the exceptions ... Read More The Civil Code considers in Article 803, the presumption principle in the contract of gift (Arabic: اَلْهِبَة, Romanized: al-Hiba) to be permissible, and it states the exceptions where it becomes obligatory (presumed to be binding). By interpreting this in the context of exclusivity, the gift between spouses is included under the permissibility of revocation. However, Article 1037 adopts an approach that is conflicting with Article 803. This is while the issue of spousal gifts is a matter of dispute among jurists. Some, based on the authentic narration of Muḥammad ibn Muslim (Ṣaḥīḥih Muḥammad ibn Muslim) and consensus (Arabic: إجْماع, Romanized: ʾIjmāʿ), argue for permissibility, while others, citing the kinship (persons related to the legator in the female line) between spouses, the Qurʾānic verse “pacta sunt servanda or honor your contracts,” and the authentic narration of Zurārah ibn Aʿyan from Imām Ṣādiq (peace be upon him), believe in the obligation and binding of gifts. Considering that the source of the disagreement lies in the interpretation of the evidence, the author, in this study, evaluates the arguments of proponents of both views by referencing library sources and employing a descriptive-analytical approach. Regarding the reasoning of those who advocate for permissibility, it has been concluded that the subject of the authentic narration of Muḥammad ibn Muslim (Ṣaḥīḥih Muḥammad ibn Muslim) pertains to the return of Ṣadaqa (alms) rather than a gift. Since the condition for the realization of Ṣadaqa is the intention of seeking nearness to God, the basis for the permissibility of returning is the non-fulfillment of Ṣadaqa. Additionally, the reported consensus (al-Manqūl) also encounters both minor and major obstacles. However, in examining the reasoning of those who support the obligation, it becomes clear that the first two arguments they present do not sufficiently substantiate their claim. This is because the notion of kinship between spouses demands evidence, which is lacking in this context. Moreover, the cited verse pertains only to situations where there is uncertainty regarding the obligation of the contract. In contrast, numerous authentic narrations affirm the established principle that gifts are permissible. In relation to the authentic narration of Zurārah, despite various objections, it has been shown that there is no conflict with the narration of Muḥammad ibn Muslim and that it is not rejected. The fact that jurists have not acted upon one part of the narration does not invalidate the other part—specifically, the obligation of gifting between spouses—especially since this particular part has been upheld by many. Thus, by distinguishing between the parts of the narration, the latter part remains valid and continues to be acted upon. Thus, it is suggested to the esteemed legislator to include the gift between spouses as an exemption (exclusions) in the future amendments of the Civil Code.

scientific

The Arguments for the Requirement of Contracts Being Settled in Cash in Differential Barter Transactions When the Exchanged Items are Measured or Weighed and are of Different Kinds Considerations

Seyyed Ali sedaghat; Gholamali Masouminia

Volume 16, Issue 30 , December 2024, Pages 161-181

https://doi.org/10.30513/cjd.2023.4914.1834

Abstract

In many barter contracts, the disparity in the value of exchanged goods results in the quantity of the exchanged items (considerations) not being equivalent. All Shīʿa jurists agree ... Read More

scientific

Foundations of the Validity of “Balancing Two Rights” and Its Applications in Imāmiyya Jurisprudence

Abolfazl Alishahi Ghalehjughi; fariba taee; Shima Naseri; Abu- alhasan Bakhtiari

Volume 16, Issue 30 , December 2024, Pages 183-204

https://doi.org/10.30513/cjd.2023.4805.1810

Abstract

The rule of “prohibition of detriment or no harm and no harassment” (Arabic: لا ضَرَر و لا ضِرار, Romanized: Lā Ḍarar wa Lā Ḍirār) is one of the widely ... Read More

scientific

The Feasibility of Property Rights for Genome Owners in Human-Centered Genetic Research Contracts

Zahra Khosrojerdi; Mohammadreza Gholampour; Seyed Mohsen Hosseini poua

Volume 16, Issue 30 , December 2024, Pages 205-234

https://doi.org/10.30513/cjd.2025.6271.1987

Abstract

Based on findings from a comparative study of Islamic law and other legal systems, the views of religious scholars, similar to the approaches of various countries, regarding the recognition ... Read More

scientific

A Jurisprudential and Legal Analysis of the Status of the COVID-19 Pandemic in Contract Law: A Critical Review of Judicial Precedent

Seyyed Hossein Tahami; Sayyed Mohammad Mahdi Qabuli Dorafshan; محسنی Mohseni; Azam Ansari

Volume 16, Issue 30 , December 2024, Pages 235-262

https://doi.org/10.30513/cjd.2023.4937.1840

Abstract

The outbreak of the COVID-19 pandemic affected the performance of certain contractual obligations, thereby presenting a new challenge for legal practitioners, particularly judges, in ... Read More

scientific

Critique of Shaykh Anṣārī’s View on Personal and General Aleatory in the Condition of Knowledge of the Exchange Items in Sale

Rahmatollah Karimzadeh

Volume 16, Issue 30 , December 2024, Pages 263-285

https://doi.org/10.30513/cjd.2023.5018.1852

Abstract

One of the principles used in Islamic jurisprudence of transactions is the jurisprudential principle of “negation of aleatory sales” or “negation of aleatory” ... Read More One of the principles used in Islamic jurisprudence of transactions is the jurisprudential principle of “negation of aleatory sales” or “negation of aleatory” (Arabic: اَلْغَرَر, al-gharar). Shaykh Anṣārī’, in his discussion on the condition of knowledge concerning the exchange items (considerations) in sales (Arabic: اَلْبَیْع, Romanized: al-Bayʿ) specifically regarding measurable and weighable objects, stated that one of the reasons for the necessity of knowing the considerations and the requirement for measuring the object of sale by quantity and weight is the Ḥadīth prohibiting aleatory sales. He further adds that the comparison of the Ḥadīth on aleatory sales with the narrations regarding measurement and weight indicates that the type of aleatory referred to here is general aleatory. However, in the discussion of the buying and selling of cloth, sheep, and land based on observation, he states that since there is no narration related to specification and measurement, the criterion of personal aleatory applies. The question that arises is what the difference is between the two cases, in one of which a ruling is given regarding general aleatory (Arabic: اَلْغَرَر, al-gharar), while in the other case a ruling is given regarding personal gharar. Does the mere lack of a reason for necessitating measurement in the second case result in the gharar being classified as personal? This article critically examines the statements of the late Shaykh by descriptively and analytically reviewing the narrations in the issue of measured and weighed items and their connection to the Ḥadīth negating gharar. It establishes the hypothesis that, considering that the establishment of religious rulings (Arabic: الأَحکام الشَرعیَّة) occurs as real propositions, and consequently, the existence of a ruling depends on the existence of its subject, in all cases the criterion for the principle of gharar (aleatory), similar to the rule of prohibition of detriment (Arabic: لا ضَرَرَ, principle of harm), is personal aleatory, rather than generic aleatory, and there is no distinction between these two matters. Obviously, the difference between the effect of personal gharar and the effect of general gharar will play an important role in the ruling of sales and new unknown transactions, which also guarantees the necessity of this discussion.

scientific

Examination of the Condition of Ijtihād in the Role of Arbitration

Hosein Houshmand Firouzabadi; Muhammad Javad Ghasemizadegan; ehsan yavari

Volume 16, Issue 30 , December 2024, Pages 287-316

https://doi.org/10.30513/cjd.2023.4850.1819

Abstract

The method of dispute resolution through arbitration is popular and increasingly widespread due to its nature as a quick, specialized, and a form of private adjudication based on the ... Read More The method of dispute resolution through arbitration is popular and increasingly widespread due to its nature as a quick, specialized, and a form of private adjudication based on the parties’ will. Despite the well-known opinion of the jurists who maintain that it is necessary for an arbitrator to have ijtihād (Arabic: اجْتِهاد, lit.: physical effort or mental effort) just as it is required for an appointed judge, some jurists have not accepted this. In law, although there is an emphasis on the necessity for the arbitrator to have expertise regarding the disputes referred to him, ultimately the will of the parties can disregard the necessity of having this expertise and assign arbitration to a non-specialist. This article examines the legal requirement of ijtihad in arbitration, drawing upon the principles of Imāmiyya (Arabic: امامیّه) jurisprudence. Specifically, we seek to determine whether, from a jurisprudential perspective, ijtihād (physical effort or mental effort) is a necessary qualification for arbitrators, akin to the requirement for appointed judges. To explore the issue at hand, it’s essential to clarify the exact nature of taḥkīm (Arabic: تَحْکیم, Islamic arbitration) and legal arbitration. This article, using a descriptive-analytical approach, first investigates the concept of arbitration and highlights the overlap between the “arbitration” institution in law and “arbitration judgment” (Persian: قضاوت تحْکیمی) in jurisprudence. Among the various views on whether ijtihād (intellectual effort) is required for arbitrators, the article adopts the theory of distinction. This theory suggests that ijtihad is not necessary for minor claims and those involving personal rights (Ḥaqq al-Nās) but is required for other types of disputes and claims. The theory is supported by three main arguments: firstly, disregarding the specific context mentioned in Imām ʿAlī (ʿalayhi s-salāmu)’s narration; secondly, considering the suitability of the ruling and subject from the perspective of custom; and thirdly, recognizing the specialized nature of the arbitration process. Other theories are set aside based on these considerations.

Editorial

Scientific identity

Volume 16, Issue 30 , December 2024

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 16, Issue 30, December 2024, Pages 1-316

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