Instances of Conflict between Principal and Appearance in Iranian Civil Law

Document Type : Research Paper

Authors

1 Associate Professor, Shahid Motahari University, Tehran, Iran

2 ,Assistant Professor,University of Islamic Denominations , Tehran, Iran

3 Ph.D. Studentin in Jurisprudence and Principles of Islamic Law, University of Islamic Denominations, Tehran, Iran

Abstract

A topic which is widely discussed in Islamic law is the issue of the conflict between principal and appearance. Trial is one of the most important approaches for which this rule is used. According to the rule "burden of proof rests upon the claimant and the oath upon who denies", the claimant is the one whose pledge is in conflict with the principal or appearance. In the course of trial, some assumptions may be made upon which the principal evidence is expressive of one matter and the appearance is against the former; in this case, the issue of the conflict between principal and appearance is raised. Thus, rectifying and explaining this matter play a key role in issuing an accurate judgment in courts. In Islamic jurisprudential and legal texts, there is disagreement over the priority of principal or appearance. Some prioritize principal over appearance while others prefer appearance over principal evidence. In these cases one seems unable to resort to a general rule, but what matters is that a judge settles a dispute in the light of the characteristics and conditions of the dispute and their own confidence.

Keywords

Religious Researches

Articles in Press, Accepted Manuscript
Available Online from 23 August 2020

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History

  • Receive Date: 23 September 2019
  • Revise Date: 20 August 2020
  • Accept Date: 23 August 2020

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