The differential impact of imposed and guaranteed conditions in civil partnership contracts in islamic jurisprudence and Iranian law

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Keshavarz Ali; Momeni Sajjad; Ghamari Ismail; Sharifi Ali Asghar

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Journal: Journal of Law and Political Studies Year:2025 | Volume:5 | Issue:1 Page(s): 144-162

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Title

The differential impact of imposed and guaranteed conditions in civil partnership contracts in islamic jurisprudence and Iranian law

Author(s)

Keshavarz Ali | Momeni Sajjad | Ghamari Ismail | Sharifi Ali Asghar | Issue Writer Certificate

Keywords

Profit guarantee clause

imposed conditions

contractual adjustment

Civil Partnership

Mudarabah

Abstract

The issue of guaranteed and imposed conditions in Civil Partnership and Mudarabah contracts remains a subject of debate and divergence both in Islamic jurisprudence (fiqh) and in statutory law. Consequently, legal scholars and jurists, relying on various theoretical foundations, have proposed different perspectives to clarify and justify this matter. In addressing the question of how conditions affect these two types of contracts, this study employs a descriptive-analytical method to examine the views of experts and endeavor to analyze and elucidate the principal opinions in this field.To this end, principles such as proportionality in determining the partners’ shares, the dependency of profit on guarantee, and the distinction between mutually agreed conditions and imposed conditions have been utilized as the theoretical framework for analysis. Ultimately, although the Civil Code considers the Profit guarantee clause in Mudarabah and Civil Partnership contracts to be non-binding, the acceptance of mechanisms such as reconciliation or transfer of rights in favor of the beneficiary party has expanded the scope of validity for imposed conditions.Meanwhile, if the Law on Interest-Free Banking Operations is regarded as the latest legislative intent, it can be interpreted as a specification of Article 575 of the Civil Code, whereby the expected profit is accepted within the context of a particular type of economic activity. In fact, the removal of the phrase “upon realization” from legal texts grants a degree of interpretive discretion to the judiciary; accordingly, a judge may validate guaranteed conditions by considering factors such as the nature of the activity, the expertise of the borrower, and the parties’ agreement on the expected return. Alternatively, if the conditions are found to be imposed, the judge may relieve the obligated party from the effects of such clauses by adjusting the contract.

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