نوع مقاله : مقاله پژوهشی
نویسندگان
1 استاد درس خارج فقه و اصول حوزه علمیه، قم، ایران
2 دانش پژوه فقه سطح 3 حوزه علمیه، قم، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Although the principle of necessity in all contracts is emphasized in the civil code 219, an examination of the principles and arguments shows that the acceptable evidence to prove the necessity does not include suspension contracts. For necessity, it has been relied upon the manners of the wise and the jurisprudential reasons partial Isteshab and second type of the general Isteshab . The use of wise manners and the second type of general Isteshab in the necessity principle is due to a misunderstanding of the necessity and permission nature. This research shows that the necessity and permission are neither concluded from the self-requirements of the contract and the attributes of the ownership, but it is a religious rule which is governing the contract. However, using the Ijtihad reason in the jurisprudence doubts and the principle of partial Isteshab for the necessity proving will be without any problem. The correct opinion is the general flow scope indicates that the principle of necessity and the partial Isteshab principle, does not include suspension contracts. If the status rules were abstracted from the mandatory rules, this opinion will be valid and in the case of suspended contracts, the necessity principle will not apply.
کلیدواژهها [English]
