نوع مقاله : مقاله پژوهشی
موضوعات
عنوان مقاله English
نویسندگان English
In this research, the Constructive Provisions were examined by comparing the legal systems of Iran, Egypt, and Islamic jurisprudence (fiqh), using a descriptive-analytical approach with the aim of distinguishing pre-contractual constructive agreements. Additionally, a library research was employed to gather information. The primary question is the nature of this concept, while subsequent questions address its validity and scope. The findings of this study indicate that 'Constructive Provisions' refer to all pre-contractual agreements reflecting the mutual intent of the contracting parties and forming the basis of the contract. Therefore, although the origin and basis for justifying Constructive Provisions are the same as Constructive Conditions; the formalization of the theory of Constructive Provisions based on the mutual and internal intention of the parties, leads to the recognition of numerous instances of pre-contractual constructive agreements, many of which do not fit within the framework of Constructive Conditions. This distinction demonstrating the differences between these concepts. Examples include consideration, the contracting parties, the nature of the contract, the purpose of the transaction, and the basis for exemption from obligation due to loss occurring. Additionally, despite the lack of validity for pre-contractual agreements among most Imami jurists and some Sunni schools, some groups consider them valid. The foundations of Egyptian law align with the essence of this concept. Also, Egyptian law’s foundations align with this topic. Likewise, in Iranian law, due to the preference for internal intent, Constructive Provisions are considered valid, and their scope expands in line with the breadth of intention.
کلیدواژهها English
