نوع مقاله : مقاله پژوهشی
نویسندگان
1 دکتری فقه و مبانی حقوق اسلامی، دانشکدۀ الهیات، دانشگاه فردوسی مشهد، مشهد، ایران
2 استاد، دانشکدۀ الهیات، دانشگاه فردوسی مشهد، مشهد، ایران
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
Making it easy to meet the legal requirements of the society is an expediency that has a special role in satisfying the essential and general requirements of the contracts. Meanwhile, a number of lawyers, innovating a new theory called “the hidden expediency of the contracts”, believe that the hidden expediency plays an essential role in recognition of the requirements of the contract. Therefore, the present article first analyzes the role of expediency in the emergence of the requirements of contracts. Next, it reviews the viewpoint of the hidden expediency. The results show that expediency both is the reason for making elementary and secondary rules and has a central role in the actualization of the new contracts and the formation of essential and general requirements. Resorting to the essential expediency of the contract and its presumed continuity in the case of doubt is a legal solution to recognize the requirement of the contract which is considered as the main solution by the Imamiyyah jurists. The solution of the hidden expediency, if it is meant the same contracted essential requirement, is not a new matter; rather, it has been referred to earlier by the jurists. However, if it is a flowing and unstable matter that changes over time it cannot be a way for recognizing the essential requirement of the contract, because it changes the nature and the essence of the contract.
کلیدواژهها [English]
