نوع مقاله : مقاله پژوهشی
موضوعات
عنوان مقاله English
نویسنده English
A reluctance contract is a contract in which the reluctant person does something reluctantly and with the reluctance's threat without consent. A reluctant person only lacks satisfaction and self-esteem, but has the intention of making a deal. From the point of view of jurists, reluctance occurs in two forms, right and wrongful reluctance. According to the famous jurists of Imamiyyah, Iraqi civil law and Iranian civil law, reluctance makes the transactions voidable, which becomes a valid and invalid contract with the subsequent consent of the reluctant. Sunni jurists believe that reluctance causes the transactions to be void, except Hanafi jurisprudence who consider reluctance to be different in cancellable and non-cancelable contracts. In the jurisprudence and civil law of Iraq and Iran, one of the conditions for the validity of a transaction is to have the option of the contracting parties, which means that they intend to enter into the content of the contract with full satisfaction (Tayib Nafs) and the effect of the contract and transaction (creating an obligation or transferring property) not with reluctance. As a result of reluctance, consent destroys the provisions of the contract. The necessity of the validity of this condition of absolute certainty is from the meaning of the honorable verse: "Only trade is based on agreement" and also the non-ordering of effects on a contract that was concluded out of reluctance is clearly used from the prophetic hadith known as the hadith of Rifa. This research through the method of descriptive and analytical way has investigated the concept of reluctance and reluctance transactions in terms of Iraqi law and Islamic jurisprudence.
کلیدواژهها English
40. واسطى، زبیدى، حنفى، محبالدین، سید محمد مرتضى حسینى (1414ق). تاج العروس من جواهر القاموس، چاپ اول، بیروت: دارالفکر للطباعة و النشر و التوزیع.
