Change of the Defected Sold-Thing Emerging after Delivery and its Effect on the Option (to avoid) for Defect Under Islamic Jurisprudence and Jordanian Civil Law
Prof. Abdul Majeed Mahmoud Al-Salahin
Professor of Islamic Jurisprudence and its Foundation
School of Sharia, University of Jordan
Abstract:
The defect option or choice is one of the most important options within the system of contractual options in Islamic jurisprudence. This is because it provides options of termination of the contract, the return of defective sale, or continuing in the contract for buyer who is affected by the existence of a defect, and to ask the seller for compensation of the defect in the sale in its kind or value. This research aims to study an important aspect of this option, which is the change on the defective sale with the buyer and after receiving it and their impact on the choice of defect and the provisions related to it. This is done by presenting these changes and clarifying the jurisprudential opinions regarding their impact on the choice of defect and presenting and discussing the evidence of those opinions, leading to the weighting of what appears in the evidence is its preponderance with a brief statement of what the Jordanian civil law took from among those sayings. This study reached a number of results and recommendations, the most prominent of which are: 1-The basic principle is the necessity of the contract and its enforcement, and the choice of defect with its various provisions came to achieve the interest of the contracting parties. 2- Stabilizing contracts, and achieving contractual balance between the contracting parties, are among the purposes of the purified Sharia within the contract system in Islamic jurisprudence. 3- The weighting of the issues presented in this study, as indicated in the results clause of the conclusion. 4- Recommending a set of amendments suggested by the study on some articles in the Jordanian Civil Law to be taken into consideration as indicated in the recommendations section of the conclusion.
Keywords: defect, contractual options, Islamic jurisprudence, termination of the contract, return of the sale, return to the seller.