نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسنده English
It has become known that Shiite jurists, possibly inspired by Roman law, have accepted the authenticity of form and formalism in contracts and considered the use of specific words for each contract as part of the nature of the contract. Although evidence of this notion can perhaps be found among some jurists, most jurists have passed over it with detailed critical arguments. In this article, by addressing three topics: the requirement of verbal formula in contracts, the analysis of the requirement of past-tense (māḍawiyya) in contracts, and the issue of conformity and order of offer and acceptance, an attempt has been made to clarify the basis of the opinions of early jurists and to analyze the views of later jurists that have been organized on the same foundation. This article demonstrates that what has been central and foundational in juristic analyses is merely the clear and undeniable expression of intent; otherwise, from the perspective of juristic evidence, there is no reason for the necessity of using a specific form for the validation of a contract. At the end of this article, it is also briefly addressed that the registration of important and valuable contracts can be considered necessary based on the principle of rational construction, and accordingly, if social conditions change and new technologies emerge, it may be possible to move beyond this stage.
کلیدواژهها English