A New Look at the Rule of Compliance of Stipulations with the Contract Regarding the Basic Requirements for Validity Based on the Rule of Eghtefar

Document Type : Original Article

Authors

1 Assistant Professor at Faculty of Law and Political Science, Kharazmi University, Tehran, Iran: (Corresponding Author)

2 Ph.D. Student in Private Law at Azad University, Tehran Central Branch, Iran.

10.22075/feqh.2023.28130.3346

Abstract

The main issue investigated in the current research is the application of the rule of Eghtefar to the terms and provisions of contracts. The rule of Eghtefar, literally meaning "forgiveness," in legal terms refers to leniency in the conditions required for the validity of stipulations compared to those of the main contract. The present article is a descriptive-analytical study, and the mentioned subject has been examined using the library method. The results of the article indicate that, despite the predominant argument of civil law scholars regarding the applicability of conditions for the validity of the contracts to contractual terms, such an argument contradicts the rule of Eghtefar. In other words, the application of the rule of Eghtefar to contractual stipulations demonstrates that the criteria for the validity of stipulations do not necessarily follow the conditions applicable to the main contract. This study has substantiated the provisions of the rule of Eghtefar and highlighted its profound impact on the validity of contractual stipulations. In particular, it has been proved that the rule of compliance of stipulations with the condition of validity of the contract, which is considered an indisputable rule in the general rules of contracts, is contrary to the rule of Eghtefar, and this rule negates the rule of compliance of stipulations with the conditions applicable for the validity of the contract.

Keywords

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Journal of Studies in Islamic Law & Jurisprudence
Volume 16, Issue 35
August 2024
Pages 61-86

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