نوع مقاله : مقاله پژوهشی
1 دانشیار گروه حقوق اسلامی دانشگاه علوم قضایی و خدمات اداری
2 کارشناس ارشد حقوق اسناد و قراردادهای تجاری دانشگاه علوم قضایی و خدمات اداری
3 استادیار گروه حقوق اسلامی دانشگاه علوم قضایی و خدمات اداری
عنوان مقاله [English]
Transactions during mortal disease, whether he dies or not, has been a controversial topic among jurists, as well as a popular theory among Shi'a and Sunnis. On the other hand, in the Civil Code of Iran, illness is not one of the reasons for dispossession in Article 1207, but regarding the divorce and marriage of a sick person, it is mentioned in Articles 944 and 945 of the said law. Therefore, the search for the criteria included in the mentioned materials and the assessment of the patient's charitable and loving actions related to death it is necessary that the history of dispute in it goes back to the long life of Islamic jurisprudence. Therefore, according to Article 167 of the Constitution and Article 3 of the Civil Procedure Law, it is necessary to analyze the jurisprudential descriptions of the issue and search in the wise statements of the jurists in order to resolve the ambiguity and brevity of the mentioned laws. According to this approach, the criteria mentioned for marriage and divorce are different from the criteria for other financial possessions of the patient connected with death. This difference also has reverse effects; including the evidence of the claimant and the denier in the assumptions of Articles 944 and 945 of the Civil Code. And their variability in other acts of charity and love of the patient is related to death. In comparing the issue with Sunni jurisprudence, in addition to stating the criteria in line with the previous theory of Shafi'i and Hanbali jurisprudence, the reputation of the issue in Sunni jurisprudence, which believes in the method of unity of ways with extra will, has been investigated in a comparative manner. Therefore, among the mentioned opinions, the criterion of not harming the owners of the rights, in other cases of marriage and divorce, is introduced with the mentioned description of the criterion of influence of the owner's monarchy; However, in this case, the claimant and the denier are the opposite, contrary to the appearance of the patient's actions; And it is measured by proving the poverty of the heirs.