THEORY OF COERCIVE AFFIRMATION AS REFLECTED IN COMPARISONS

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GHANAVATI J.

مرکز اطلاعات علمی Scientific Information Database (SID) - Trusted Source for Research and Academic Resources

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Journal: JOURNAL OF ISLAMIC STUDIES Year:2007 | Volume:- | Issue:77 (ISLAMIC LAWS AND JURISPRUDENCE) Page(s): 157-179

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Title

THEORY OF COERCIVE AFFIRMATION AS REFLECTED IN COMPARISONS

Author(s)

GHANAVATI J. | Issue Writer Certificate

Keywords

AFFIRMATIONQ3

ACCEPTANCEQ3

COERCIVE AFFIRMATIONQ3

UNILATERAL COMMITMENTQ3

CIVIL CRIMEQ3

Abstract

In Islamic jurisprudence (in Imāmī, Shāfi‘ī, and Ḥanafī legal schools), it is accepted as a rule that as long as the intention of creation and the agreement of the party to a contract is not supplemented to ījāb (AFFIRMATION, offer), no legal right will take effect, and the affirmer (mūjib) can withdraw from his AFFIRMATION any time before ACCEPTANCE, with no responsibility ensued for his withdrawal. In contrast, the Mālikī jurists maintain that the announcer of ījāb can not withdraw his ījāb before the ACCEPTANCE by the addressee. To their opinion, the announcer of ījāb creates by his announcement the right to accept and possession for the other person (i.e., the addresser), and the latter must be able to utilize this right. For this reason, the affirmer does not have the right to withdraw from his AFFIRMATION, and in case of withdrawing, his withdrawal would be invalid. This viewpoint is compatible with what is generally accepted in western law. In written legal systems and in some common law countries, the theory of coercive AFFIRMATION is accepted as an inalienable legal rule in law. Imam Khumayni, from among the eminent Imāmī jurists, believes concerning the function of ījāb in conclusion of an agreement that the simple affirmative creation (inshā’) is sufficient for the realization of a contract, and that ACCEPTANCE has no function except in establishing the dealt transaction and accepting the creation of the announcer of ījāb. Nevertheless, he believes that ījāb is not coercive and the mūjib can withdraw from his ījāb any time before ACCEPTANCE.It seems that from the viewpoint of logics of law and argument procedure no certified reasons can be presented for the theory of coercive AFFIRMATION (ījāb-i mulzim), and the ACCEPTANCE of this theory faces difficulty in the realm of primary ordinances and rules.

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APA: Copy

GHANAVATI, J.. (2007). THEORY OF COERCIVE AFFIRMATION AS REFLECTED IN COMPARISONS. JOURNAL OF ISLAMIC STUDIES, -(77 (ISLAMIC LAWS AND JURISPRUDENCE)), 157-179. SID. https://sid.ir/paper/29675/en

Vancouver: Copy

GHANAVATI J.. THEORY OF COERCIVE AFFIRMATION AS REFLECTED IN COMPARISONS. JOURNAL OF ISLAMIC STUDIES[Internet]. 2007;-(77 (ISLAMIC LAWS AND JURISPRUDENCE)):157-179. Available from: https://sid.ir/paper/29675/en

IEEE: Copy

J. GHANAVATI, “THEORY OF COERCIVE AFFIRMATION AS REFLECTED IN COMPARISONS,” JOURNAL OF ISLAMIC STUDIES, vol. -, no. 77 (ISLAMIC LAWS AND JURISPRUDENCE), pp. 157–179, 2007, [Online]. Available: https://sid.ir/paper/29675/en

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