Scintific Journal of "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

The Holy Quran.
Abdurrahman, M. (Beta). Encyclopaedia of Jurisprudence and Jurisprudence. Out of Place (In Persian).
Bojunordi, M. (1389). Jurisprudence Rules. Najaf: Al-Adab Press in Al-Najaf Al-Ashraf (In Persian).
Banai Eskoui, M. (1391). Forced and Voluntary Termination of the Contract is Not Allowed. Bi-Quarter Scientific Journal of Civil Law Knowledge, 1 (2), 45-54 (In Persian).
Cheshire. A, & Fifoot. A., (1976). Law of contract, Butterworth. 9th ed, London.
Darabpur, M; & Darabpour, M, R. (2014). Rights of Contracts. Tehran: Jungle (In Persian).
Derakhshanno, M. (2013). Derivatives and Risk Management in Oil Markets. Tehran: International Energy Research Institute (In Persian).
Del Vecchio, G. (1380). Philosophy of Law (Javad Vahedi, Translator), Tehran: Dadgstar (In Persian).
Emami, H. (Beta). Civil Law. Tehran: Islamia (In Persian).
Esfahani, S, M, H. (1414 AH). The End of al-Darrayah fi Sharh al-Aqiq (First Edition). Qom, Al-Al-Bayt Institute for Revival of Tradition (In Persian).
Georgian, A. (1370). The Rule of Compliance of the Contract with the Intention and the Rule of Liquidation. Scientific Quarterly of Islamic Research, 1(1). 52-67 (In Persian).
Hashemi Shahroudi, S, M. (2011). Textbook of Principles of Jurisprudence. Qom: Ahl al-Bayt Foundation of Jurisprudence and Education (In Persian).
Hull, J, C., (2005). Fundamentals of Futures and Options Markets, Prentice Hall, 4ed.
Jafari Langroudi, M, J. (1381). Balance Theory. Tehran: Ganj Danesh Library (In Persian).
Katouzian, N. (1376). General Rules of Contracts (2nd edition) Tehran: Publishing Company in Collaboration with Barna (In Persian).
Masouminia, G, A. (1387). Derivative Tools of Jurisprudence and Economic Review (First Edition). Tehran: Research Institute of Islamic Culture and Thought (In Persian).
Mohaghegh Damad, S, M. (1406 AH). The Rules of Jurisprudence. Tehran: Science Publication (In Persian).
Mohaghegh Damad, M; Kanavati, J; Vahdati Shabiri, H; & Abdipour, I (2012). The Rights of Contracts in Imami Jurisprudence. Tehran: Organization for Studying and Compiling Humanities Books of Universities (Samt) (In Persian).
Mousavi Khomeini, S, R. (1407). Al-Bai Tehran: Ministry of Culture and Islamic Guidance (In Persian).
Modigliani, F., & Fabozzi, F. J. (1992). Capital Markets: Institutions and Instruments. Englewood Cliffs (NJ), Prentice-Hall.
Naini, M, H. (1376). The Benefits of Al-usul (Fourth Volume) (First Edition). Qom: Society of Seminary Teachers (In Persian).
Omrani, A. (2012). Examining the Jurisprudential Rule of Contracts Subject to Intent in Iranian and English law. Bimonthly Journal of Judicial Science, 50(101), 34-40 (In Persian).
Razmi, M; & Nabinia, K. (2010). The Rule of Dissolving the Contract Into Multiple Contracts is in Jurisprudence and Law. Scientific Quarterly of Jurisprudence and History of Civilization, 8(28), 51-82 (In Persian).
Sadeghi Shahabi, M; & Pakzat, S, M. (2017). Oil Future Contracts, Commitment to Sell or Commitment to Daily Transfer of Collateral. Scientific Quarterly of Asset Management and Financing, 6 (20), 181-200 (In Persian).
Safai, S, H. (2013). Introductory Course of Civil Rights (volume two). Tehran: Mizan (In Persian).
Senhouri, A, R, A. (1958). Al-Usit in the Description of the Civil Law. Cairo: Al-Nahda Al-Masriyya School (In Persian).
Shahidi, M. (1373). Collapse of Commitments. Tehran: Bar Association (In Persian).
Tabatabai, A, M. (1331). Annulment, Dissolution and Termination of the Contract. Bar Association. 5 (29), 42-49.
The Second Martyr, Zain al-Din bin Ali (1410 AH). Al-Ruda al-Bahiya in the Description of al-Lama' al-Damashqiyyah. Qom: Davari bookstore (In Persian).
Walker, D. M. (1980). The Oxford Companion to Law. Clarendon Press, Oxford.
Zubaydi, S, M, M. (1414 AH). Taj al-Arus, my Jewel of al-Qamoos. Beirut: Dar al-Fakr for Printing and Publishing (In Persian).
Scintific Journal of
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