"Islamic Finance Researches" (IFR)

Violation of the Forced Dissolution of Contracts from the Intention of the Parties (with Emphasis on the Guarantee Arising from the Obligation of Future Contracts)

Document Type : Science - Research (Islamic Finance Jurisprudence)

Authors

1 Professor, Faculty of Theology and Islamic Studies, Tehran University, Tehran, Iran

2 Ph.D. Student of Jurisprudence and Fundamentals of law, Faculty of Theology and Islamic Studies, Tehran University, Tehran, Iran

Abstract

Any transaction that is valid in the world of law is based on the intention and will of the parties in the absence of which a transaction will not be realized. Among these cases is the guarantee created as a result of depositing the obligation with the clearing house in future contracts, and all the provisions and effects of the contract are based on the intention and will of the parties. Dissolution of contracts, which is divided into three types, namely cancellation, termination and forced dissolution of contract is one of the most important issues of falling obligations in jurisprudence and law. On the other hand, in the case of forced dissolution of the contract, which results from the forced loss of the seller or the permanent excuse of fulfilling the provisions of the obligation, it is not a sign of the intention and will of the parties and the ruling on annulment of this type of contract is final. This type of dissolution, which is referred to in jurisprudence as the rule of "invalidation of the whole contract with the excuse of fulfillment in content", is in some way in conflict with the rule of "contracts subject to intentions" and consequently with the guarantee in future contracts. Written in a descriptive-analytical manner, an attempt has been made to resolve this conflict. What seems to be the rule of invalidity of a contract the fulfillment of which is impossible is the rule of citizenship of the contract of intent.

Keywords

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Volume 11, Issue 1 - Serial Number 21
February 2021
Pages 145-168
  • Receive Date: 17 June 2021
  • Revise Date: 25 September 2021
  • Accept Date: 06 November 2021