نوع مقاله : مقاله پژوهشی
1 استادیار گروه فقه و حقوق امامیه دانشگاه مذاهب اسلامی
2 دکترای فقه و مبانی حقوق اسلامی دانشگاه تهران
عنوان مقاله [English]
The conclusion of a contract conditionally indicates that one party (the obligee) has conditioned his or her obligation regarding the provisions of the contract to the fulfilment of a condition or some conditions by the other party (the obliged); in fact, the obligee has written his or her will conditionally. Therefore, if the obliged party contravene condition or conditions of the contract, the continuity or the possibility of the contract annulment should be decided about. Regardless of the Condition of Result which it is not possible to be contravened, and the Condition of Quality whose contravention leaves no way but the possibility of annulment for the obligee, different opinions have been presented about facing the contravention of the Condition of Action in jurisprudential texts. From among the opinions we can mention that some jurisprudents have introduced the possibility of forcing the obliged party to fulfill the condition or conditions along with the possibility of the contract annulment. Some others believe that forcing the obliged party is not possible and it is just possible to annul the conditioned contract. However, in Shiite jurisprudential texts, the possibility of marriage annulment due to the contravention from Condition of Action has been left unsaid and it seems that the marriage contract, from the viewpoint of most of the jurisprudents has been excluded from the general rule prevailing the contracts. The tendency of some jurisprudents and researchers in presenting viewpoints, including calling the offender from the condition as a guilty person, or nullifying the legal act whose leaving has been a condition of the marriage contract, indicates the preclusion of marriage annulment in their viewpoints. In Sunni jurisprudential schools, only the opinions of some Hanbali jurisprudents have strengthened the possibility of marriage annulment due to the contravention of Condition of Action. In this study, it has been attempted to prove the permission of marriage annulment due to contravention of Condition of Action through presenting independent reasons on the possibility of marriage annulment based on the Option of Unfulfilled Condition (Khiyar al-Ishtirat) and also scientific and exact review of the reasons of opponents to annulment.