Retroactivity of the contract at its dissolution spend - Comparative research between Islamic jurisprudence and civil law -
Risalat al-huquq Journal,
2012, Volume 4, Issue 1, Pages 6-53
AbstractContract has been considered as the one very important source of obligation which reliable the financial responsibility between individuals .The contract may be set aside by the courts with out prejudice to any claim for damages.The Rescission of Contract does not take place automatically by operation of law unless there is an express clause to this effect. In every other case the Rescission must result from a courts judgment, where this an express clause providing for Rescission , it operates only in favour of the party willing to perform . In considering the effects of such Rescission that the contracting parties to go back where they beginning from before the formation of the contract and Recovery of vindicative damages from each other ,that may be called Retroactive force of Rescission for with Retroactive force . It should be noted that Jurisdiction with Retroactive force take very important place in the writting of Islamic jurists as well as in the writting of civic code jurists and that is not for away from the version of law and the decision of Judiciary .The position of the Reaction ism of the contract lies in concept, scope and the character that usually return back to the consent of the contracting parties and in particular to the character of the contract itself all that are supplemented by effects and postulate how it ought to operate ,these may also reflect the object of contract and obligation which is due under it .There for I have divided this Research in three chapters:-
The first chapter an effort is made to analyses the basis of the reaction ism of the contact , what is emphasized here its concepts and definition which in discussed by different schools of jourists . The Second chapter in conserned with the Restriction on the basis of the Restriction ism of contract .The third chapter _ deals with the effects be caused of Restriction of contract where the non – performance of an obligation is resolved into acclaim for damages that is a payment of a sum of money .
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