Look at the judicial adjustment in the light of "al-Aqoud subsidiary party"

Subject Areas :

zinat jafari fesharaki ¹ , mohammad jafari fesharaki ²

1 - Department of jurisprudence and basis of Islamic Laws,Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran
2 - Asistant prefessor,Faculty member,Isfahan(Khorasgan) Branch, Islamic Azad University, Isfahan, Iran

Received: 2018-10-23 Accepted : 2019-05-12 Published : 2019-05-22

Keywords: Equilibrium, Intent, Implicit condition, Key words: Judicial adjustment, the rule of “Al-oqud-tabe’a-lel-Qosoud”,

Abstract :

AbstractJudicial review of the contract in light of the rule of “Al-oqud-tabe’a-lel-Qosoud”Review:With the advancement of economic developments in recent centuries and the increase in the coefficient of influence of external factors in long or long-term contracts, sometimes the balance and economic balance during the execution of the contract is so tantamount that its implementation is obligatory, although impossible, but with difficulty and There is a lot of hardship. Since the laws of Iran have not provided a solution, a judicial modification of the contract is raised, That the major reason of the opponents of contract judicial modification is its conflict with the principle of necessity; hence, in case of proving the presence of implied condition of balance of considerations in the parties’ will and intent, the above-mentioned condition is included in the rule of “Al-oqud-tabe’a-lel-Qosoud” and the contract judicial adjustment will not have any conflict with the principle of necessity. Notwithstanding, there is an important question is that how to reach the above-mentioned implied condition in the will and intent.It was concluded in the present study through descriptive-analytical method that through citing the reasons such as: esalat-alzohoor, and referring to commons, etc. the intended implied condition of balance of considerations is achieved, therefore judicial adjustment isn’t not only a secondary verdict and an exception in the principle of necessity but it is also the first verdict and in accordance with the principle of necity. Key words: Judicial adjustment, Implicit condition, Equilibrium, Intent, the rule of “Al-oqud-tabe’a-lel-Qosoud”