نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The issue of a party’s refusal to fulfill its contractual obligations is one of the most challenging legal problems, and the guarantees arising from such refusal play a crucial role in preventing breaches. This study, conducted using a descriptive-analytical method, seeks to examine the views of jurists from the five major denominations of thought regarding a party’s failure to meet its contractual duties. The findings indicate that, while Imamiyyah jurists acknowledge the necessity of guarantees in the event of a contract breach, they refrain from extending the no-harm principle (Qā’idat lā ḍarar) to financial guarantees, considering contractual commitments to be tied to the principles of loss (Ḍamān) and causality (Sababiyyah). This implies that individuals are liable for harm caused by their actions when they undertake a specific duty, regardless of their supervisory role. Both Imamiyyah and Sunni jurists argue that contractual and obligatory guarantees rest on the same foundation, emphasizing that the existence of a contractual relationship does not alter their nature. Apart from the Ḥanafī denomination, most Sunni denominations of law do not confine the no-harm principle to physical property; they also regard lost benefits as a basis for guarantees. To seek compensation for such breaches, one must rely on the concepts of loss and causality, as underscored by the jurisprudential maxim, “The blood of a Muslim is not wasted”. Jurists in Islamic countries have also recognized the notion of guarantees arising from the failure to meet contractual obligations as a deterrent against contract violations. They contend that, while contractual commitments depend on the parties’ intentions, compulsory guarantees are prescribed by law and subject to the authority of the legislator.
کلیدواژهها English
