mohamad hassan sadegimoghdam; javad shiekhe
Abstract
In Iranian and American law, Restitution; as the most important effect of rescission, has been determined similarly antecedent to rescission. In iranian law, first, islamic lawyers has recognized rescission as the basis of restitution and analyzed their effects while in American legal system, due ...
Read More
In Iranian and American law, Restitution; as the most important effect of rescission, has been determined similarly antecedent to rescission. In iranian law, first, islamic lawyers has recognized rescission as the basis of restitution and analyzed their effects while in American legal system, due to some problems and lack of unified judicial procedure, lawyers and some theorists in last years has recognized rescission as the basis of restitution. Moreover, rescission has based on two theories in iranian legal system; Bilateral Consent and Do No Harm (LA ZARAR). In the other hand, American legal system has been based on unjust enrichment theory. In this article, first, the process of recognition of the right in two legal systems has inspected and later, the base of rescission has compared between two legal systems. The process in two legal systems (although the process in American law has happened with a long historical distance) demonstrate that due to lack of coherent theory about rescission and thereupon lack of unified Judicial procedure in common law, law theorist coming close to general theory of rescission in written legal systems
Mohammad Hassan SadeghyMoghadam; Meysam Musapour; Jalal SoltanAhmadi,
Volume 5, Issue 2 , February 2017, , Pages 27-40
Abstract
Abstract
In order to boost the capital market, finance, and absorption and accumulation of small and scattered funds, various tools and several contracts in different countries are used in different countries. In this regard, also in Islamic countries, in addition to the use of traded contracts ...
Read More
Abstract
In order to boost the capital market, finance, and absorption and accumulation of small and scattered funds, various tools and several contracts in different countries are used in different countries. In this regard, also in Islamic countries, in addition to the use of traded contracts in financial markets of America and some European countries such as futures and options contracts, new contracts were developed within the framework of Islamic criteria in addition to the traded contracts in financial markets of America and some European countries such as futures and options contracts. One of these contracts is “parallel salaf” that has been formed to eliminate restrictions and obstacles of salaf exchange, especially the impossibility of selling the futures goods before maturity that prevents creation of the secondary market and funds absorption. “Parallel salaf”, as a strategy to be presented in the Securities and Exchange market, has taken a new shape, and has been defined as “the standard parallel salaf contract” under specified and certain criteria whilst the dynamism of the stock exchange and more participation, management and hedging transactions will be carried out. By investigating in Islamic Jurisprudence texts, objections and doubts can be raised about “the standard parallel salaf contract”. The novelty of this contract and the need to adapt it with Jurisprudential foundations - despite the absence of jurisprudential and legal sources - necessitates explanation of this contract and removing explanation of its ambiguities and legal objections in order to increase efficiency and synchronization with our country’s rights. In this article all objections to “the standard parallel salaf contract” will be raised and answered.
