Private Law
Mahmoud Kazemi; Hasan Ansari CHeshmeh fard
Abstract
The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application ...
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The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application in the law have limited the space for the effectiveness of Mudarabah. It seems that this dispute can be resolved in the context of the modern legal system and with the presence of the school of positivism, which has an emerging role in the subject laws, along with the generality of Muslim jurisprudence. In fact, the result of the interaction of the two schools is the reason for the implicit establishment of sovereignty that positivism refers to in the heart of the laws. This research reveals that the meeting place and the creation of disagreement in the discussion of guarantee conditions in Mudarabah, in line with the rules of the school of positivism, can be resolved by maintaining the ideals of legal and jurisprudential justice and economic efficiency. Therefore, the application of the law in attaching a new contract to Mudarabah is not necessary, and it is possible to explain the investment with the condition that the investor does not guarantee the damage to the capital in the form of identifying a new contract.
Mahmoud Kazemi
Abstract
The Iranian civil code is a legal and cultural masterpiece which has an important role in Iranian law system. It is the result of the Compatibility between tradition and modernity. It has been based on the rule of the Islamic Jurisprudence or Islamic law which is known as Fiqh , and the modern legal ...
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The Iranian civil code is a legal and cultural masterpiece which has an important role in Iranian law system. It is the result of the Compatibility between tradition and modernity. It has been based on the rule of the Islamic Jurisprudence or Islamic law which is known as Fiqh , and the modern legal system (French civil code). But these two important resources play different roles in the plan of the Iranian civil code. The structure, chapters and articles of the civil code have been adopted the French civil code , but its contents has been founded on the Islamic Jurisprudence (Islamic law i.e. Fiqh) , as stressed by the writer of Iranian civil code. The effect of the Islamic Jurisprudence (Islamic law i.e. Fiqh) on the structure of the civil code is to the extent that some legal writer and jurists call it properly, “ Persian Jurisprudence”. This fact is effective in interpreting civil code. Duality of resources and approving hastily result in deficiency in Iranian code civil. This article is aimed to review of the resources and structure of Iranian civil code.
Mahmoud Kazemi; Abbas Borzouei
Abstract
In Iranian Civil Law. like in Islamic Jurisprudence, in addition to puberty, the maturity is necessary in order to have capacity for carrying out transaction. The age of puberty is defined in jurisprudence; however, there is no specific age of maturity. Before the revolution in Iran , Article 1210 ...
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In Iranian Civil Law. like in Islamic Jurisprudence, in addition to puberty, the maturity is necessary in order to have capacity for carrying out transaction. The age of puberty is defined in jurisprudence; however, there is no specific age of maturity. Before the revolution in Iran , Article 1210 of the Civil Code determined the age of 18 as a criterion for maturity. After the Islamic Revolution, this provision changed under the pretext of conformity of the Civil Code with Islamic Jurisprudence. The text of this provision regards the age of puberty as maturity. However, according to note 2, when the maturity can be proved, it is possible to give him his properties. This conflict has led to debate and controversy. In this paper, the" maturity "is considered from jurisprudence perspective and it is concluded: First, the maturity is merely necessary for the possession of financial affairs. Second, there is no consistency between amendments made to Art 1210 and the view of majority in Islamic jurisprudence. Jurists do not accept the"puberty" as a presumption of maturity. Third ,the maturity is a common concept and it can be proved conventionally. For the purpose of proving it , there is no need for the decision of court
