Non-incorporation of Terms to the Parties’ Contractual Intention in English Law and Islamic Jurisprudence: A Comparative Matching Study

Document Type : Original Article

Authors

1 Assistant Professor, Department of Law, Payam Noor University, Tehran, Iran.

2 Master of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.

3 Master of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

Abstract

The Matter of entering the condition into the contract has received less attention from jurists.  Maybe this is because just signing means accepting all the provisions to make a contract. While the signature is a type of way that includes conditions.  There are other ways, such as notification and history or trading period. The main question of this essay is that, first, How many ways to enter a condition in the contract can be imagined? Secondly, if there is a heavy condition in the contract, what is the approach of English law and Islamic jurisprudence? Onerous terms may be entered into the contract in one of the three ways mentioned.   What English law has established as a rule with a correct understanding of business custom is the principle called the red hand, the absence of which is quite noticeable in Islamic jurisprudence. However, the mechanism of jurisprudence is similar for simple and heavy conditions, and it is the rule of action that is adhered to by signing the contract by the contractor, and the contractor is bound by the condition It gets heavy.This thesis proved with a comparative-approximate study that if the heavy conditions in the contract are not brought to the attention of the contracting party in a reasonable and unambiguous manner, the signature of the contracting party cannot be relied upon, and according to the principle of innocence in jurisprudence and the rule of interpretation against the drafter, ambiguity is in favor of the contracting party. It is interpreted. In Iranian jurisprudence and law, according to the existing implicit condition, the burden of proving the knowledge of the party to the provisions of the heavy conditions can be considered to be on the party. Therefore, the abuse of the contractor in the drafting of the contract will be closed to some extent and good faith will be observed in the preparation of the contract.

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Journal of Comparative Law
Volume 7, Issue 2 - Serial Number 12
October 2023
Pages 145-158

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History

  • Receive Date: 03 December 2022
  • Revise Date: 09 January 2023
  • Accept Date: 05 February 2023

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