Reviewing the impact of abuse and wastage in the lent (trust), a comparative study in Islamic jurisprudence and civil law
Journal Title: فقه و اصول - Year 2016, Vol 48, Issue 104
Abstract
Imamiyah jurists have had different views regarding the rights of the trustee in terms of abuse and wastage in the lent (trust); from the known theory of the claim for damages not being associated with the abuses and wastage on the basis of the generalities of the ‘on the hand’ rule to the theory of the relationship between fault and damage according to the general rules of liability and istīmān. Awareness to this issue will not be possible except through an investigation of the background and knowledge of the jurisprudential fundamentals of the known view among the jurists with regard to a lack of relationship between a claim for damages and abuse and wastage. Therefore, it is aimed in this paper to examine the conditions of the trustee in connection with the abuses and wastage first in Imamiyah jurisprudence and then in Iranian law. In this study, it is shown that the views of those jurists who consider as possible the domain of the trustee’s responsibility in terms of the involvement of a causal relationship with the abuses and wastage are more compatible with the ownership and possessive authority of the owner on his own property and the logical foundation stemming from istīmān rule.
Authors and Affiliations
Mostafa Karbalaee Aghazadeh, Reza Daryaee
Keywords
Related Articles
- EP ID EP190677
- DOI 10.22067/fiqh.v48i24.21066
- Views 96
- Downloads 0
The Approach of Traditions concerning the Cause of Revelation in the Imāmī Jurists’ Inference from Āya 115 of Sūrat al-Baqara
Six causes of revelation have been related concerning āya 115 of Sūrat al-Baqara; i.e. the noble āya, ﴾To Allah belong the east and the west: so whichever way you turn, there is the face of Allah! Allah is indeed all-bou...
The Principle of “Obligation for Dignifying Human Being” in Islamic Jurisprudence and Law
The inherent dignity is a Divine bounty from God to Man and since it is inherent and intrinsic in human nature, its dispossession is not possible. According to some of the noble verses of the Qur’ān, human dignity can be...
A Juridical-Legal Inquiry into ‘Aḍl in the Marriage of the Grown-up Virgin
To prevent the consequences of inexperience and prevalence of fervor resulting from emotions and sentiments in a young girl who is unfamiliar with marital affairs, the legislator has deemed as necessary the permission [f...
A comparative study of the primary rule for doubt from the viewpoint of Mohaghegh Nāīnī and Shahīd Sadr
When in doubt over duty and the absence of reason, it is the time for adhering to practical principle; but, there is disagreement among principalists as to what is the rimary rule in times of doubt. Some scholars includi...
The reality of Sunni Usulites views regarding the issue of ratification (tasvīb) and its roots
Ratification as a term common among the Imami Usulites entails that divine decree is consistently in compliance with the mujtahid’s opinion, and even in cases where the opinions of the mujtahids differ with one another,...