نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه حقوق خصوصی دانشکده حقوق دانشگاه قم
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
One significant outcome of the principle of freedom of contract in law is the validation of novel, constantly evolving agreements. However, an unregulated application of this principle risks deeming all contracts valid, thereby negating the instructive role of Sharia in contractual matters. Jurists have proposed three problematic approaches for invoking contractual freedom: when a specific pillar of a named contract is missing; when defining characteristics of any contract are absent; or when an uncommon agreement aligns with Article 10 of the Civil Code, justice, and equity. This descriptive-analytical article proposes a new criterion. If the general pillars of a contract exist but specific elements are absent, and the parties explicitly designate their agreement as a "Sulh" (reconciliation contract) or under Article 10—both rooted in mutual consent—then the contract is valid. This validity stems from "excusable ignorance" regarding the missing specific elements, provided there is no unanimous juristic consensus ("Ijma") on its invalidity. Conversely, if the parties label their act as a specific new contract without its necessary pillars, it is void if their intent corresponds to that title. If such specific intent is unproven and no consensus on nullity exists, the argument for validity becomes defensible.
کلیدواژهها [English]
