The Position of Shart al-Muamara (the Option of Consultation or Advice) from the View of Shia Fiqh

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ALISHAHI GHALEHJOUGHI ABULFAZL; Mullashahi Ali Reza

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Journal: CIVIL JURISPRUDENCE DOCTRINES Year:2017 | Volume:- | Issue:14 Page(s): 59-74

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Information Journal Paper

Title

The Position of Shart al-Muamara (the Option of Consultation or Advice) from the View of Shia Fiqh

Author(s)

ALISHAHI GHALEHJOUGHI ABULFAZL | Mullashahi Ali Reza | Issue Writer Certificate

Keywords

Option clauseQ1

Shart mu’āmara or the option of consultation or adviceQ1

ConsultantQ1

Variety of consultantsQ1

Abstract

among options (al-Khiarat), Option clause for being the result of free will of two contract parties has a special feature. Two contract parties in Option clause can stipulate that the person having option after consulting with a third party (person) can execute or does not put into effect the contract. Idiomatically, this option is named shart mu’ ā mara or the option of consultation or advice. There are two questions about this option: why does the stipulation of mu’ ā mara cause the negation of the right of fulfilment or non-fulfilment of contract (putting into effect the contract or not) by the client before advice or consultation? What should be done if the client acts contrary to the opinion of the third person? In the response to the first question, this research has achieved that the option (al-khiar) is not supposed or regarded to be separated from the stipulation of mu’ ā mara. The client before consultation and advice does not have the right to put into effect the contract or cancel it and exercising the option has no effect. In response to the second question, it should be mentioned that this case has two forms: when the client consults with Consultant and the Consultant orders to fulfill the contract, in this case, it is proved that it is necessary for the client to fulfill the contract. This obligation of fulfilment is for the condition of the option of cancellation or annulment has not been obtained therefore the annulation is void or the fulfilment of contract is for its natural exigency. The Consultant commands to null or cancel it, in this case the client is the possessor of cancelation and has right (free) to cancel or fulfil the contract. After being familiar with the quiddity of mu’ ā mara (consultation or advice) in this paper, the evidences of Islamic jurists (fuqaha) have been studied about the determined cases and has been proved the determined opinions.

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APA: Copy

ALISHAHI GHALEHJOUGHI, ABULFAZL, & Mullashahi, Ali Reza. (2017). The Position of Shart al-Muamara (the Option of Consultation or Advice) from the View of Shia Fiqh. CIVIL JURISPRUDENCE DOCTRINES, -(14 ), 59-74. SID. https://sid.ir/paper/227198/en

Vancouver: Copy

ALISHAHI GHALEHJOUGHI ABULFAZL, Mullashahi Ali Reza. The Position of Shart al-Muamara (the Option of Consultation or Advice) from the View of Shia Fiqh. CIVIL JURISPRUDENCE DOCTRINES[Internet]. 2017;-(14 ):59-74. Available from: https://sid.ir/paper/227198/en

IEEE: Copy

ABULFAZL ALISHAHI GHALEHJOUGHI, and Ali Reza Mullashahi, “The Position of Shart al-Muamara (the Option of Consultation or Advice) from the View of Shia Fiqh,” CIVIL JURISPRUDENCE DOCTRINES, vol. -, no. 14 , pp. 59–74, 2017, [Online]. Available: https://sid.ir/paper/227198/en

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