Document Type : Original Article
Authors
1 Islamic Seminaries of Qom
2 Islamic Seminary of Qom
Abstract
Belonging the terminating right for the contract or to the object is one of the basic principles for analyzing issues such as the fall or non-fall of the terminating right for the contract with the loss of the object, the acquisition of the object and its transfer to others. Despite the importance of this problem in drafting legal concepts, its arguments have not been considered by lawyers in details. The fundamental question is that is it the fact that terminating right for the contract disappears with the loss of the object, or contract is the main subject which by losing the object, terminating right for the contract remains and the payment of the object is imposed? This research illustrates that the basic practical principle is that terminating right for the contract related to the object, but the existing jurisprudential rules and the IJTIHAD reasons of the wise approach, indicate that belonging the terminating right for the contract is such that by object losing, the wise still consider the object tax as their own self. On the other hand, the reasons which proving the terminating right for the contract are divided into two categories: arguments without any term and arguments with certain term. Also, the arguments with certain term is divided into two categories, including the arguments contain the terminating right for the contract as a certain term and the arguments contain the main object rejection as the main term. Awareness of the arguments without any term and arguments with certain term related to the terminating right for the contract confirms the belonging the terminating right for the contract. Only in the terminating right for the contract, due to the existence of consensus, existence of the object is introduced as an important subject and terminating right for the contract is belonging to the object.
Keywords
- Ibn Abi Jumhur, M.I.Z. (1985). Awali al-Laali al-Aziziyya in religious hadiths. vols. 3. Qom: Sayyid al-Shuhada Publishing. (in Arabic)
- Isfahani, M. (1997). Comment on the book Al-Makasib (I-Hadith). vol. 4. Qom: Anwar Al-Huda Publishing. (in Arabic)
- Ansari (Sheikh), M. (2015). Al-Makasib. vols. 5 & 6. 21th ed. Qom:Islamic Thought Association Publishing. (in Arabic)
- Ansari (Sheikh), M (2016). Farayid Alosoul. vol. 3. 21th ed. Qom:Islamic Thought Association Publishing. (in Arabic)
- Bagheri Asl, H. (2014). A Study of Lack of Loss of Option with Destruction of the Object, Islamic Law Research Journal, 39, 5-31.(in persian)
- Bojnurdi, S.H. (1999), Al-Qawa'd al-Fiqhiyah, vol. 2, Qom: Al-Hadi Publishing. (in Arabic)
- Javadi Amoli, A. (2013), Higher Level of Jurisprudence Course, Sale Course, available at the website www.eshia.ir. (in persian)
- Horr Ameli, M.i.H. (1989), Wasa'il al-Shi'ah, vol. 18, Qom: AAlulBayt Institute. (in Arabic)
- Helli (Allama), H.(1992). Qawa'd al-Ahkam in recognition of Halal and Haram.vol. 2, Qom: Islamic Publications Office affiliated with the Society of Teachers of the Seminary of Qom. (in Arabic)
- Khorasani (Akhund Khorasani), M.K. (1986). Comment on the book Al-Makasib. Tehran:Ministry of Culture and Islamic Guidance Publishing. (in Arabic)
- Khomeini (Imam Khomeini), S.R. (2001), Kitab al-Bayy, vol. 5, Tehran, Institute for Organizing and Publishing the Works of Imam Khomeini.(in Arabic)
- Khansari, M. Second Comment on Al-Makaseb. (in Arabic)
- Rouhani, S.S. (2008). Minhaj al-Fiqhahat. Vol. 6, 5th ed. Qom: Anwar al-HadaPublishing. (in Arabic)
- Shirazi (Mirzai Shirazi), M.T. (1992). Hashiyeh Al-Makaseb, vol. 2, Qom: Al-Sharif Al-Razi Publications.(in Arabic)
- Safarkhani, M; Salehi. M; Nikkhah, R. (2020).Misrepresentation in Marriage Contract with Emphasizing on New Instances in Light of Scientific and Medical Advances, Journal of Studies in Islamic Law & Jurisprudence, 23, 181-210. (in persian)
- Tabatabai Yazdi (Sahib orwa), S.M.K. (2000). Comment on the book Al-Makasib. vol. 2, 2nd ed. Qom: Ismailian Publishing. (in Arabic)
- Tusi (Sheikh Tusi), M.I.H. (1968). Al-Mabsut Fi Fiqh Al-Imamiya, Vol.2, 3th ed, Tehran: Al-Maktabiyah Al-Mottazaviyah for the Revival of the Works of Al-Jafaria. (in Arabic)
- Tusi (Sheikh Tusi), M.I.H. (1987). Tahzib Al-Ahkam, vol.7, Tehran, Dar Al-kotob Al-Islamiyah. (in Arabic)
19.Ameli (Mohaqeq Karki), A. (1993). Jamie Almaqasid in Explaining the Alqawaeid. Vol. 4. 2nd ed. AAlulbayt Institute. (in Arabic)
- Ameli, S.J. Meftah Al-Keramat in the Explanation of Al-Qawaed, vol. 9, Beirut, Dar Al-Ihyaa Al-Tarath Al-Arabi. (in Arabic)
- Koleini, M.i.Y. (2008). Al-Kafi. Vol. 10. Qom: Dar Al-Hadis. (in Arabic)
- Mamqani, M.H. (1932). Nihaieh Al-Maqal Fi Takmaleh Qaiat Al-Amam, Qom, Majmae Al-Zakhayer Al-Islamieh. (in Arabic)
- Naeini, M. (1954). Monya al-Talib in the coment of the book of Al-Makaseb, Report: Sheikh Musa Khansari. Vol. 2. Tehran: Al-Muktabah al-Muhammadiyah Publishing. (in Arabic)
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