فهرست مطالب zinat jafari fesharaki

In all legal systems, the items of the contract are binding for both parties; however, sometimes unpredictable conditions like war, sanction, etc. take place which dramatically disturb the economic balance and equilibrium and although enforcing the commitment is not impossible, it is followed by much difficulty and loss. In such cases judicial moderation of the contract is suggested that the rule of prohibition of detriment, rule of distress and constriction negation, Ja’iha Hadiths, cancelling the rent due to lessor and lessee’s excuse and the rule of “العقود تابعه للقصود” law have been applied to prove it. With the carried out investigations it can be concluded that Ja’iha Hadiths and canceling the rent contract due to the lessor or lessee’s excuse have not been accepted by Imamiyyah and among the Sunni schools of thought, Hanafis and Shafi‘ies do not believe in Ja’iha Hadiths. Malikis and Hanbalis are not in agreement about the degree of Ja’iha and Malekis’ statement is more adaptable to Judicial Moderation. Moreover, the majority of Shafi‘i, Hanbali and Maliki Jurists do not consider the lessor and lessee’s excuse as a cause for cancellation, but in Hanafis’ opinion it causes cancellation that in any case this excuse is not capable of justifying judicial moderation of the contract, since even in case it is accepted, it causes the contract cancellation not its moderation.

The opponents of this plan believe that in paying debts the nominal value of the money should be considered not its real value. The most important reasons of this group are the fungibility of the money, the problem of usury and… Those who agree with this planalso invoke to the rule that “In Islam there is no injury or malicious damage” and the necessity of observing justice and equity and believe that if the decrease of the value of money is too much, certainly the debtor will be discharged from the viewpoint of the common law when he pay the real value of the money.