Contents

 

- An Analysis of the Meaning of Permanent vs, Modifyable Laws and Authentic Texts vs. Opinions in Religious Policy / Touba Shakeri Golpayegani

- The Status of Hardship - Law and Approach / Leila Saadaat Asadi

- The Principle of Possibility - Its Application to Issues Related to Jurisprudence within Women’s Rights / Dr. Naghibi

- Electronic Contracts / Batool Ahani

- The Liabilities of a Physician in Islamic Jurisprudence and Law / Sorour Mirhashemi

- An Analysis of the Washington Convention of 1965 in Solving International Trade Conflicts / Mehrnaz Mehrabi

- The Guardianship of the Child in Iranian and French Civil Laws / Maryam Sadiqi

- Arabic Abstracts / Dr. Zineh Erfatpour

- English Abstracts / Somayeh Abdollahian

- Index to Volumes 24-35 (2001-2004)

 

 

The Status of Hardship – Law and Approach

Leila Saadaat Asadi

Ad hoc arbitrator

 Article 1130 of Iranian civil law allows the wife to apply for a divorce by way of consulting a judge and proving the prevailing state of hardship. Principally, this article provides the wife the possibility of becoming free from the bond of marriage, regardless of the basis of the hardship, only by proving the reasons that bring it about.

The fact that the article in question is a principle is one of its advantages. On the other hand, however, putting the law into practice has become an issue of personal taste.

The writer believes that the following items will help, to some extent, solve the problems of putting the article into practical use, namely by bringing about and developing a new approach for courts in relation to this article, defining the meaning of hardship and informing the relevant judges of it, as well as making the employment of women judges in family courts obligatory.

 

Key words: divorce, hardship, al-hākim valī al-momtane‘, marriage condition

 

  

The Principle of Possibility - Its Application to Issues Related to Jurisprudence within Women’s Rights

Dr. Naghibi

University Faculty

The jurisprudential principle of possibility, i.e. koll-i dam yomken an yakūn heizan fa hova haiz va an kāna asfaran va gheirah, is one important example of principles specific to women. This principle has always attached the attention of jurisprudents as an issue of jurisprudential interest, although it has been paid much less attention as a principle in itself.

Jurisprudents consider the principle of possibility as legitimate on the following grounds: the principle of good health, the prophetic sayings, the way of life of those committed to the Shari’a, consensus, and the common custom. Though, only some of the prophetic sayings that are relevant for the principle are acceptable.

Like the principles of purity and non-prohibition, this principle consolidates in it the principle of practice and formal law. There exist doubts about the principle with regard to its subject, whereas it requires further consideration whether there also exist doubts about it as a law.

Issues related to worshipping are the most important area of practical use of the principle. In addition, it also plays a great role in legal contexts for women such as marriage and divorce.

 

Key words: jurisprudential principle, menstruation, possibility, principle of practice, formal law, subject-related doubts, law-related doubts, issues related to worshipping, women’s rights

 

  

Electronic Contracts

 Batool Ahani

University Faculty

Imam Sadiq (P.) University

 The possibility of making a contract is an essential merit of electronic   commerce. Therefore, it is necessary to examine to what extent the common laws on contracts are applicable to this type of contracts, and to what extent the laws on electronic commerce affect those laws. In this regard, the following two items are put to scrutiny, namely the validity of the declaration of intent by way of a data message, and in what way the formation of agreement of two intents is accomplished.

As far as the validity of the declaration of intent is concerned, a contract has been satisfactorily made provided the principle of the contentment of contract makers has been fulfilled. Thus, observing a certain procedure or using a special form of language are not conditions of the validity of a contract. Consequently, there is nothing to preclude an electronic declaration of intent.

However, there arises a problem when the observance of a certain procedure is exceptionally a condition of the validity of a contract as for example when the declaration of intent either necessarily has to be in written form or provided with a signature. Although data messages are not originally considered as being in written form or having a signature, the laws on electronic commerce have inevitably had to start considering them as such.

When it comes to the formation of agreement, the common laws on contracts are applied to electronic contracts as much as possible. Finally, the special advantage of electronic contracts entails that all the declarations on the Internet sites are considered as invitations to offers.

 

Key words: contract, electronic commerce, offer, acceptance

 

 

The Liabilities of a Physician in Islamic Jurisprudence and Law

Sorour Mirhashemi

Researcher

APhysician is considered as a people’s Trust in Islamic Jurisprudence. Performing an act of treatment on his patient is out of the physician’s good will. It is said ’There is no obligation on good-doers’. Similarly, it is said ’The reward of good will is but good will.’ Thus, a physician is not liable for losses caused by treatments.

Shiite jurisprudents state that a physician has the duty, under Shari’a law, to treat patients. In doing so he has no obligation of either achieving any results for the treatment or restoring the patient’s health. Rather, he has the duty to make necessary efforts known in order to cure the patient. Regarding a physician as responsible will, on the contrary, hinder the practice of medicine and the physician will refrain from treating patients.

While doing surgery, and performing it in accordance with an ordinary surgical procedure, a surgeon sometimes has to inflict wounds that can have dangerous consequences or even cause the patient’s death. Therefore, the article 60 of Islamic law of punishment requires the physician to get an exemption from liabilities before starting any treatment. ‘If a physician obtains n exemption from responsibility from the patient or his guardian before beginning a treatment or surgical operation, he is not liable for any physical or financial loss or defect of a part of the body. Even in cases of emergency, when it is not possible to get such an exemption, the physician is not considered liable.’

This second part of the article investigates the issue comprehensively.

 

Key words: consent, waiving, permission, approval, clearance from obligation

 

  

An Analysis of the Washington Convention of 1965

in Solving International Trade Conflicts

Mehrnaz Mehrabi

Researcher

International trade conflicts between states and private people are an issue of fundamental importance which has incurred much debate. On the one hand, states try to make the laws and verdicts of their own countries influence contract making and related judicial proceedings. On the other hand, foreign investors always seek the most reliable means possible in fear of the influence of states as well as changes in laws.

Moreover, trade claims and disputes related to private investors are special kinds of claims with peculiarities and characteristics of their own. Therefore, to solve such disputes requires suitable methods and laws and the service of competent experts should be sought.

With the purpose of solving disputes involving investments between states and foreign citizens, the World Bank established an international center for the settlement of investment disputes, i.e. ICSID, by way of the Washington Convention of 1965. The convention has laid down the special proceedings for the recognition and execution of the judicial proceedings of the center, providing a strong and effective system of executing the center’s decisions. The issue is studied and analyzed in this article.

 

Key words: the Washington Convention of 1965, ICSID, requirement for an arbitral award, recognition and execution of an arbitral award, immunity of states, international court of justice

 

 

The Guardianship of the Child in Iranian and French Civil Laws

Maryam Sadiqi

Researcher

Guardianship means caring for and educating a child in a way that the child’s physical health and education are provided for with regard to the child’s present and future needs as well as the parents’ state and position. The issue of the guardianship and suitability of either the father or the mother as a child’s caretaker and guardian is mostly taken up at times when the parents divorce.

It is the practice among jurisprudents to consider within the Iranian civil law, the mother as more appropriate for the guardianship of a boy until the age of 2 and for the girl until the age of 7.

According to French law guardianship is taken up under the title of parental guardianship, which in addition to the guardianship of the child also comprises that of his/her property.

Apparently, guardianship is a right for the mother, whereas it is a right and a duty for the father. There exist contradictory views on the issue, though. The most important issue related to guardianship is securing the child’s interests, which has been paid attention to in making the laws on it. Therefore, if the parents do not meet the conditions of suitability for guardianship and good morality of their characters, this right is denounced and given to a person whom the court considers to fulfill them.

This paper attempts at categorically examining the parents’ rights and duties toward their children from the viewpoints of the Iranian and French civil laws. It also draws conclusions on the analysis of some of the articles of the World Declaration of the Rights of the Child.

 

Key words: guardianship, right, duty, denouncement of guardianship, parental guardianship, training and education