The Impact of Condition on the Contract Status
Journal Title: فقه و اصول - Year 2014, Vol 46, Issue 98
Abstract
The condition within the contract is a principle that has been recognized in the Islamic Law but there is disagreement among the authorities concerning its impact on the condition of the contract in the two stages of formation and continuation of the contract. In the formation stage, the difference is in terms of the relation between the condition and the subject, concerning which, from among the views of being part of the subject, being a description or a subordinate, and being independent, the latter view is more conforming to the legal rules and the intention of the two parties, according to which, the invalidity of condition would not have any effect on the validity of the contract. In the continuation stage of the contract, the difference is a result of the role of condition in the intention of the two parties; since some have by a single objective (waḥdat-i maṭlūb) come to believe that denial of the condition causes cancellation of the contract. Some maintain the multiple objectives (ta‘addud-i maṭlūb), according to which invalidation of the condition causes the cancellation of part of the contract; and some believe in the multiplicity of the main (i.e., the contract) and the peripheral (i.e., the condition), according to which, denial of the condition does not cause the cancellation of the contract; rather, it would lead to option (khīyār) for the party in whose favor the condition is set (mashrutun lah). This latter viewpoint is more conforming to the legal rules and the nature of condition.
Authors and Affiliations
‘Alī Riḍā BāRīKlū
Keywords
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- EP ID EP184543
- DOI 10.22067/fiqh.v46i18.20450
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