Explanation and Distinction of the Legal Nature of Permission as a Basis for Permissibility and Permission as a Basis for Agency (Permission as the Source of Permissibility and Permission as the Source of Agency)

Document Type : Original Article

Authors

1 PhD student in private law, Urmia University, Urmia, Iran.

2 Associate Professor of Islamic Jurisprudence, Urmia University, Urmia, Iran (correspondence author)

3 Associate Professor of Islamic Jurisprudence, Urmia University, Urmia, Iran.

10.22075/feqh.2023.28351.3377

Abstract

Permission (''Idhn'') is a frequently used concept in the jurisprudential and legal systems of Iran. Identifying and explaining the legal nature of permission is the first step toward analyzing this legal concept, as well as the different areas in which it plays a role. The widespread applications of permission have made it challenging to choose a single nature for it. Scholars who have aimed to identify the legal nature of permission have often focused on its permissive aspect, assigning it a single nature. They then extend this chosen nature to the permission found in ''permissive contracts.'' Accordingly, scholars have argued about whether permissive creation stems from will or legal provision; some consider permission a unilateral legal act (Iqa’), while others see it as a legal event. Viewing permission as a unilateral act or legal event seems accurate only in cases where the granting of permission results in permissiveness. However, in cases where permission becomes a source of representation—or, in other words, when permission leads to the creation of agency, as in contracts of agency—the nature of permission cannot be regarded as a unilateral act. Defining permission as a unilateral act in such cases leads to inconsistencies and fails to align the selected nature with instances where permission forms the basis for agency. Thus, to determine the legal nature of permission, it is necessary to distinguish between the nature of permissive permission and that of permission as a basis for agency (i.e., in permissive contracts) and to examine them separately. According to the authors, the legal nature of permission as a source of permissiveness is unilateral, while permission as a source of agency holds the nature of a contract.

Keywords

References

  •  

    • Quran
    • Esfahani, Mohammad Hossein (1998), Makasab margin, vol. 2, Qom, Al-Alamiya Press
    • Ilyasinia, Abolfazl; Aref Nia, Taybeh (2019) Analyzing the effect of the consent of the offender on the criminal and civil responsibility of the offender with a look at the course of legislation in Iran, Islamic Jurisprudence and Law Studies Quarterly, 23rd year, number 23, 67-96
    • Emami, Hassan (1993), Civil Rights, Tehran, Islamic Bookstore Publications
    • Jafari Langroudi, Mohammad Jafar (2021), Philosophy of Civil Rights, Volume 2, Ganj Danesh Publications, 4th edition
    • Jafari Langroudi, Majmad Jafar (2006), Law Terminology, Tehran, Ganj Danesh Publications, 15th edition
    • Hosseini Maraghi, Seyyed Mir Abdul Fattah (1997), Al-Anawin, Volume 2, Qom, Nashar al-Islami Institute
    • Khansari, Seyyed Ahmad (1985), Jame al-Madarak fi Sharh, a brief summary of benefits, vol. 3, Ismailian Publications, Qom
    • Dehkhoda, Ali Akbar (1999), Dehkhoda dictionary, vol. 2, University of Tehran publishing and printing, Tehran, second edition
    • Sadat Akhavi, Seyed Mohsen (2013), the legal nature of the doctor-patient relationship and its causes, Medical Law Quarterly, 5th year, 18th issue, 40-11
    • Sadat Akhavi, Seyed Mohsen (2013), Analysis of the Legal Basis of the Doctor-Patient Contract, Medical Law Quarterly, 5th year, 19th issue, 46-11
    • Shahid aval (2012), Lamea al-Damshaqiyah, vol. 2, Dar al-Fikr Publishing House, Qom, 4th edition
    • Shahidi, Mehdi (2016), Civil Laws: Principles of Contracts and Obligations, Volume 2, Fourth Edition, Majid Publications, Tehran.
    • Tabatabaei Yazdi, Seyyed Mohammad Kazem (1993), Takmulah al-Arwa al-Waghti, vol. 1, Maktaba al-Davari, first edition
    • Tarihi Najafi, Fakhreddin (1993), Majma Al-Baharin, Qom, Ismailian Institute
    • Abedi, Mohammad; Mortazavi, Seyedah Samiyeh (2017), the ability to entrust the consent of a coercive guardian in a marriage contract, Islamic Jurisprudence and Law Studies Quarterly, 10th year, number 19, 241-262
    • Ali Akbari Babukani, Ehsan; Hakim Javadi, Mohammad (2017), jurisprudential-legal analysis of the nature of representation (contract or compound contract), Fiqh and Principles, 50th year, number 3, 105-125
    • Fazel Abhi, Hassan. (1996), Kashf al-Emoz, Qom: Islamic Publications Office.
    • Fasihizadeh, Alireza (2012), Permission and its legal effects, Majd Publications, third edition
    • Qasimzadeh, Seyyed Morteza; Khosravi Farsani, Ali (1385), Civil liability of the akhze be som in jurisprudence and civil law, Legal Perspectives Quarterly
    • Gudarti Siahmezgi, Taiba/Haydari, Irfan (2019) The Principle of Abaha and the Principle of Halit in Iranian Jurisprudence and Law, Modern Jurisprudence and Law, 1st Year, Number 4, 1-17
    • Katouzian, Naser (1993), Introductory course on civil rights and legal practices, publishing company in collaboration with Bahman Barna, second edition
    • Katouzian, Nasser (2009), Iqaa Civil Rights, 4th edition, Tehran, Mizan Publishing
    • Katouzian, Nasser (2014), Moin contracts, Vol. 4, Publications of the publishing company, 8th edition
    • Katouzian, Nasser (2018), General Rules of Contracts, Volume 1, Ganj Danesh Publications, Tehran, second edition
    • Katouzian, Nasser, (2012), Introduction to the Science of Law, Publishing Company, Ninety-two editions
    • Katouzian, Nasser (2009), Iqaa Civil Rights, Ch. 4, Mizan Publications
    • Kashif al-Ghata, Mohammad Hossein (1981), Tahrir al-Magaleh, Vol. 4, Ch. 1, Najaf, School of Al-Janah
    • Kaviar, Hossein; Jovanmard Farkhani, Ebrahim; Miri, Hamid, (2019), the nature of permission, two scientific quarterly journals of Islamic jurisprudence and legal foundations, 4th year, 42nd issue, 26-5
    • Mohaghegh Damad, Seyyed Mustafa (2012), Tabatabai Yazdi's Innovations in Advocacy and its Criticism, Legal Research Journal, No. 63, 1-36
    • Moin, Mohammad (2008), Farhang Moin, two-volume course, Vol. 1, Pars Novin Press, 4th issue
    • Moin, Mohammad (2008), Farhang Moin, two-volume course, Vol. 2, Pars Novin Press, 4th issue
    • Mohagheq Halli, Ahmad bin Muhammad bin Fahd (1988) Sharia' al-Islam, Qom: Ismailian Institute.
    • Mohaghegh Qomi, Haj Mirza Abulqasem Jilani (2003) Jame Al-Shatat, Qom: Khoonsari lithograph
    • Encyclopedia of Islamic jurisprudence according to the religion of Ahl al-Bayt (2007), Volume 8, Institute of Islamic Jurisprudence encyclopedia on the religion of Ahl al-Bayt
    • Mousavi Khomeini, Ruh A... (1990), Kitab Al-Bai, Vol.2, Ch0, Qom: Ismailian Press Institute
    • Mousavi Khomeini, Ruh A... (1997), Kitab al-Bai (Khorramabadi Commentaries), Vol. 1, Qom, Imam Khomeini Works Editing and Publishing Institute
    • Mousavi Khomeini, Ruh A... (1990), Kitab Al-Bai, Vol.1, Ch0, Qom: Ismailian Press Institute

     

Journal of Studies in Islamic Law & Jurisprudence
Volume 16, Issue 35
August 2024
Pages 133-160

Files

Share

How to cite

Statistics