نوع مقاله : مقاله پژوهشی
1 استادیار گروه فقه و مبانی حقوق اسلامی دانشگاه بوعلی سینا
2 دانشجوی دکتری فقه و مبانی حقوق اسلامی دانشگاه بوعلی سینا
عنوان مقاله [English]
The law of contracts is the law of expectations; expectations which are the content of the secondary confirmation of the two parties to the contract, as interpreted by Usuli scholars. These expectations have different dimensions. One dimension is concerned with the location of fulfillment of the contract obligations. The question is how the parties’ expectations about the location of fulfillment of obligations can be met. Undoubtedly, if the location is determined by the two parties and assuming that recognizing the location of fulfillment of obligations is not problematic according to the tradition, the judge shall have no problem in interpretation of the contract. The problem appears when the judge cannot determine the location by discovering the intention of the two parties or cannot determine the exact position in the tradition. In the latter case, which has been less comparatively examined, as is concern of the present study, there is no agreement between the religious scholars and the lawyers. The well-known Imami religious scholars and Iranian lawyers consider the place of execution of the contract as the location of contract while the religious scholars of the four Sunni religious sects consider the status of bought/sold goods and the place of their submission as the location of the contract. Egyptian lawyers believe that if the issue of obligation is specific by nature, the location of fulfillment of obligations, when there is no agreement or any other rule, must be the same place in which the subject of the contract is available to be delivered on the due date. In other obligations, location of fulfillment of obligations is the place of residence of the obligated party when fulfilling his/her commitment. When the obligation is concerned with a business, the center of operation is the obligated party. It seems that in determining the location of execution of a contract, the intended place is of priority and in the case of doubts about the additional obligations, the principle of innocence (Bira’at) shall prevail.