Conditional Sale (Bay’ al- Shart) in the Jurisprudence of Islamic Schools of Law
Ahmad
Moballeghi
دانشیار دانشگاه مذاهب اسلامی
author
Ali Reza
Abin
دانشجوی دکتری فقه و حقوق خصوصی دانشگاه شهید مطهری
author
Mehrdad
Jamshidian
دانشجوی دکتری فقه و مبانی حقوق اسلامی دانشگاه مذاهب اسلامی
author
text
article
2015
per
Conditional sale (Bay’ al- Shart) refers to a transaction in which a seller sells a product and sets the condition for having the right to cancel it in a certain period of time such that if he/she can repay the price in this period, he/she will be able to take back the object of sale. This type of buy-sell has always been a matter of special concern for Imamiyya and Sunni jurists; however, there is a significant controversy over this legal issue from the conceptual perspective, especially in terms of the Islamic rules. Imamiyya jurists agree on the correctness of this type of buy-sell and recognize it as a transfer of ownership but they consider the buyer’s ownership of the object of sale as unstable and not definite. In contrast, majority of Sunni jurists do not recognize conditional sale (Bay’ al- Shart) as legitimate or as a transfer of ownership. The existence of such a difference requires a reinvestigation of the foundations of Imamiyya and Sunni jurists. In addition to addressing this issue, this paper suggests a categorization of conditional sale (Bay’ al- Shart) into real and nominal transactions as well as the application of certain orders to each of the two categories by summarizing the views of the jurists of Islamic law in line with the needs of contemporary societies.
Fiqhe Moqaran
International University of Islamic Denominations
2322-1976
2
v.
4
no.
2015
5
28
https://fiqhemoqaran.mazaheb.ac.ir/article_11859_243f6a6d33f65e784704fbd63ebbebe1.pdf
Causes of Disagreement in Text Interpretation among Muslim Jurists
Mohammad
Jafari Harandi
دانشیار دانشگاه آزاد اسلامی شهرری
author
Behnam
Darabi
دانشجوی دکتری فقه و حقوق جزا دانشگاه خوارزمی
author
text
article
2015
per
Research on the causes of disagreement among Sunni jurists has a long history. Sunni scholars have tried since the early centuries of Islam to address, and provide explanations for, the nature of disagreement between companions and scholars. However, this issue was not so much a cause of disagreement among Shiites, who recognized the Immaculate Imams (Pbut) and their methodology of ijtihad, thus being free from disagreements. From among known causes of disagreement, there has been little discussion over text interpretation based on accounts of the Islamic tradition as a source of disagreement. A comparative study of the jurisprudence of Islamic texts clarifies these differences and identifies the causes of disagreement in text interpretation among jurists. Five factors can be named as the main causes of disagreement in text interpretation among jurists: linguistic features, interference between principles and worldview, social understanding of the text, acceptance or rejection of some legal rules, and fixation on appearances.
Fiqhe Moqaran
International University of Islamic Denominations
2322-1976
2
v.
4
no.
2015
29
47
https://fiqhemoqaran.mazaheb.ac.ir/article_11860_b587c35a1b0c169ecd35e4bcc111d2b7.pdf
Conferment of the Right to Divorce to the Wife in Islamic Jurisprudence
seyed mahdi
jalali
univercity naragh
author
text
article
2015
per
The conferment of the right to divorce to the wife is a controversial issue in Islamic jurisprudence. This controversy is caused by conflicting Islamic traditions in this regard. Some of these traditions reserve the right to divorce for the wife and some others do not. There are two approaches to this issue in Shiite jurisprudence. The minority approach argues for the permissibility of conferment and cites extant Islamic traditions that exceed opposing ones in number, authenticity and signification. In contrast, the majority of jurists argue for the impermissibility of conferment because of contradictory orders in relation to the conferment of the right to divorce to the wife in permitting accounts. According to this approach, since rules of conferment contradict one another and no one tradition can be preferred to the others, it is impossible to practice them. Therefore, orders that permit conferment need to be treated with care. In contrast, Sunni scholars agree on the principle of conferment in general but disagree on the details of its nature and rules. In addition, the statute laws in the Iranian Civil Code do not address this subject. Following the majority approach, the Iranian Civil Code must be read as against the permissibility of conferment. However, this right has been recognized in Egypt, Iraq, and Syria. Finally, considering the discussion in the present paper, the impermissibility of the conferment of the right to divorce to the wife has been established.
Fiqhe Moqaran
International University of Islamic Denominations
2322-1976
2
v.
4
no.
2015
49
64
https://fiqhemoqaran.mazaheb.ac.ir/article_11861_7d471373a04cdbdf0e0540d3386c1363.pdf
Retaliation of Muslims and Non-Muslims from the Perspective of Islamic Jurisprudence and the Iranian Legal System
jalil
omidi
دانشیار دانشگاه تهران
author
Zakaria
Hoseini
دانشجوی دکتری فقه شافعی دانشگاه تهران
author
text
article
2015
per
In Islamic law, based on the consensus of jurists, a non-Muslim who deliberately and out of hostility murders a Muslim can be retaliated against. It is also a matter of consensus that the murdering of an infidel by a Muslim should not be retaliated. What is disputed here is whether to retaliate against a Muslim who has murdered a completely innocent non-Muslim, including non-Muslims under protection (Kafir Dhimmi), non-Muslims enjoying temporary safe conduct (Kafir Mu’ahad), and non -Muslims enjoying absolute safe conduct (Kafir Musta’man). Four jurisprudential theories are proposed in this regard. Most jurists believe in absolute inequality and dismiss retaliation. On the contrary, some consider Muslims and non-Muslims as equal in terms of crime and the ensuing responsibilities. Some consider it necessary to examine this issue scrupulously and some others consider the recurrence of a non-Muslim’s murder as condemnable to retaliation or execution. Iranian lawmakers in their most recent decision makings chose the theory of inequality from among the above mentioned theories and rejected the retaliation of a non-Muslim’s murder by a Muslim. By critiquing the arguments and principles of jurists and by citing the Koranic verses and the Hadiths in relation to this issue and the general spirit ruling over them, this article argues for the theory of equality and mutual retaliation between Muslims and non-Muslims.
Fiqhe Moqaran
International University of Islamic Denominations
2322-1976
2
v.
4
no.
2015
65
83
https://fiqhemoqaran.mazaheb.ac.ir/article_11862_949fd5a6a34b66f65a6befc070b7becd.pdf
Recitation of the Koran by a Menstruating Woman in the Jurisprudence of Islamic Schools of law
سهیلا
رستمی
استادیار دانشگاه کردستان
author
text
article
2015
per
Islamic jurists have proposed two general views about the recitation of the Koran by a menstruating woman. The more common and more popular view is that the recitation of the Koran by a menstruating woman during menstruation is Haraam, or prohibited. In contrast to this view, there is another view that sanctions the recitation of Koran during menstruation. The supporters of this view try to prove their theory by reference to textual proofs such as Koranic verses that command people to recite the Koran, certain hadiths as well as through rational arguments. In contrast, those who advocate the prohibition of reading the Koran during menstruation also employ accounts of the Islamic tradition to prove their cause, including the verse “none can touch but the purified” (Surah al-Waqiah, 79) and the Hadith “the menstruating and the ritually impure (because of copulation or ejaculation) should not touch the Koran” as well as rational arguments such as analogy. By examining jurisprudential views on this issue, this paper concludes that the view of those who advocate the prohibition of the recitation of the Koran during menstruation is preferable.
Fiqhe Moqaran
International University of Islamic Denominations
2322-1976
2
v.
4
no.
2015
85
108
https://fiqhemoqaran.mazaheb.ac.ir/article_11863_52f6507078f825af8c91a60510845f17.pdf
Endowment by the Immature Child in the Jurisprudence of Islamic Schools of law
Morteza
Rahimi
استادیار دانشگاه شیراز
author
text
article
2015
per
Sunni jurisprudence, compared with the Shiite one, is much stricter on endowment or a will made for endowment by minors. It is because the Sunni jurisprudence does not distinguish between the discerning (mumayyiz) and the undiscening child and does not clarify whether the act of endowment is conducted with the permission of the child’s guardian. Under any condition, Sunni jurisprudence does not consider endowment by the Sabi (minor) child outside of the general premises against endowment by the immature. The possibility of giving permission to minor acts of charity by children according to accounts of the Islamic tradition, the possibility that the specific meaning of charity might not be endowment, referring to endowment as charity in accounts of the Islamic tradition, and arguments by jurists such as Al-Shaikh ali-Tusi and Al-Shaykh Al-Mufid that endowment and charity are synonymous have led to uncertainty over the permissibility and the correctness of endowment by children. After all, jurists who advocate the permissibility of endowment by children recommended the repetition of endowment at puberty as a crucial and necessary precaution. Both Imami and Sunni jurisprudences have accepted the basic principle of the impermissibility of endowment by the Sabi (minor) and the Hajr (those who are not allowed to trade their properties) and have excluded some cases as exception by reference to Ta’abbudi obligations (religious orders that cannot be explained in terms of rational arguments).
Fiqhe Moqaran
International University of Islamic Denominations
2322-1976
2
v.
4
no.
2015
109
129
https://fiqhemoqaran.mazaheb.ac.ir/article_11864_af7311dd0904242f7b1d6f0198a496c9.pdf