نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار فقه و حقوق جزا دانشگاه شهید مطهری واحد تهران، تهران، ایران.
2 کارشناسی ارشد فقه و حقوق اسلامی دانشگاه تهران، تهران، ایران.
3 دکتری تخصصی فقه و حقوق جزا، دانشگاه شهید مطهری واحد تهران، تهران، ایران (نویسنده مسئول)
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
The family system is the most important social system on which the stability of society depends. For this reason, Islamic jurisprudence attaches special importance to it and has shown considerable sensitivity in issues related to it. One of the areas related to the family is the discussion of marriage, which is a social contract and is concluded between spouses. Given that the necessity of a verbal contract is well-known among jurists, the issue of "marriage by marriage" is one of the branches of jurisprudence. This article, using a descriptive-analytical method and collecting data in a library manner, has examined the position of sign language in marriage by marriage with a jurisprudential and legal approach. The main question of the present study is that given that the person by marriage is unable to conclude a verbal contract, in general, can such a person, regardless of his or her ability or inability to provide power of attorney, fulfill his or her marriage contract by merely indicating it? The findings of this study show that from the perspective of Imami jurisprudence, there are three positions regarding the marriage of the last-named person, which are very controversial among jurists. The main discussion is in the first position; where the mute and last-named person has the ability to use a proxy. In such a case, we want to examine whether a person can make a verbal offer and acceptance by gesture. The second position is the impermissibility of gesture in a non-last-named person, which is not permissible according to the jurists and is not a matter of discussion at all. But the third position is the necessity of stimulating the tongue along with the gesture, which is controversial. Finally, by examining jurisprudential and legal sources, we find that even if the last-named person has the ability to use a proxy, he can express the offer and acceptance of the marriage contract by gesture, and proxy and stimulating the tongue are not necessary, as can be inferred from the application of Article 1066 of the Iranian Civil Code and the personal status laws of some Islamic countries.
کلیدواژهها [English]
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