Principle of Contract Freedom: Contracts and Contractual Conditions
Journal Title: فقه و اصول - Year 2010, Vol 42, Issue 85
Abstract
The principle of justice is among the basic principles of Islamic law, particularly, in the law of contracts. Different legal systems establish and renew legal rulings in numerous cases through this principle. In fact, the essential and formal justice in these legal systems prevents injustice and unfair and tyrannical procedures by designation of the principle of contract freedom. It is tried in this article to take a look at some legal systems, the American Uniform Commercial Code (U.C.C), and the Principles of European Contract Law (PECI) and compare them to Islamic law. We believe that in Islamic law the jurists have, at least in some of their inferences, considered the principle of justice as one of the basic principles for inference of rulings. However, we cannot clearly imply from the legal standards and fundamentals that the principle of justice has been taken as a general principle governing all the legal rulings and regulations, including the law of contracts. We also contend that in the common law system, including the American Uniform Commercial Code, the principle of contract freedom is accepted as a general principle governing the law of contracts; and only if essential and formal injustice is involved, this general principle is designated.
Authors and Affiliations
JalīL QanawāTī
Keywords
Related Articles
- EP ID EP183063
- DOI 10.22067/fiqh.v0i0.7927
- Views 104
- Downloads 0
Condition of Quantity (Legal and Judicial Analysis of Articles 355, 384, and 385 of Civil Law)
Quality condition is one of the terms of contract that the guarantee against its violation is the emergence of the right to cancellation for the party in whose favor a condition is set. Sometimes the quantity (miqdār) of...
Evidence of Intellect and its Status in the Legal Attitude (Sīra) of Muḥaqqiq Ardabīlī
Given the importance of the evidence of intellect (dalīl-i ‘aql) in inferring legal rulings, especially in new issues, examining the evidence of intellect would help a better use of the evidence of intellect. Examining t...
Shī‘ī Versified Jurisprudence in the Last two Centuries
One of the methods of the past scholars for better and faster learning of sciences has been the versification of scientific material. This type of poetry is called ta‘līmī (didactic) in technical terms. Many scholarly ma...
Elucidation of Man’s Independence in Divorce Based on Appropriative Quiddity of Marriage Contract
As mutually agreed upon by the two major sects (Shī‘a and Sunnī), divorce is effected only by the husband; and to explain the evidence for this matter, the jurists commonly resort to the Prophet’s tradition, “Divorce is...
A comparative study of the primary rule for doubt from the viewpoint of Mohaghegh Nāīnī and Shahīd Sadr
When in doubt over duty and the absence of reason, it is the time for adhering to practical principle; but, there is disagreement among principalists as to what is the rimary rule in times of doubt. Some scholars includi...