نوع مقاله : مقاله پژوهشی
نویسندگان
1 فقه و مبانی حقوق اسلامی. فقه و حقوق.موسسه آموزش عالی حکیم طوس. مشهد. ایران
2 گروه فقه و مبانی حقوق اسلامی، موسسه آموزش عالی حکیم طوس، مشهد، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
In the present era, the phenomenon of heavy and unusual dowries and its challenges reach their peak when the specified dowry (mehr al-mosmi) is either not “able to be delivered” or the parties, especially the couple, do not have a “serious and real intention” to pay it. This descriptive-analytical article, citing library sources and a study of the foundations of Imami jurisprudence and Iranian civil law, answers the fundamental question of whether it is possible to rule on the invalidity of mehr al-mosmi in such cases and the need to resort to “mehr al-mustahl”? The present study is organized into three main sections: First, the condition of “power to deliver” as one of the general conditions for the validity of contracts is analyzed in the field of dowry and its jurisprudential evidence, including the rule of negation of gharar, the rational rule of the necessity of purposefulness of obligations, and Quranic implications are examined. Second, the element of "intention to make a contract" and the effect of its absence on the validity of dowry-related agreements are examined, relying on rules such as "contracts are subject to intent" and "what is intended does not happen and what happens does not happen" and its relationship with the concept of "stupid transaction" and the invalidity of irrational legal acts is explained. Third, the nature and principles of "metaphorical dowry" as an alternative and fair solution in the event of the invalidity of nominal dowry are discussed. The findings show that jurisprudential foundations and legal principles provide a significant capacity for invalidating unrealistic and formal dowries. Commitment to the impossible does not have the basic elements of a valid commitment and cannot be the source of legal effect. the transition from invalid nominal dowry to fair considered a judicial solution to solve social problems.
کلیدواژهها [English]