شروط العقد المخالفة لما عليه القضاء : دراسة فقهية تطبيقية

Abstract EN

This is an applied jurisprudential research that deals with looking at the terms of the contract that were concluded between the contracting parties, providing for a legal obligation or an jurisprudential adaptation of the contract.

This condition or conditioning differs in it among the jurists, and the judiciary has settled the ruling according to the other saying, so what is the ruling on working with these conditions and what is the judge's position on them?
The research was divided into an introduction, an introduction, two topics, and a conclusion.

The first topic is to explain that the contract or condition, if it is a matter of significant disagreement between the jurists, then the contracting parties must verify that this contract or condition is not forbidden by them or among those who imitate it from among the mujtahids.

But if the contract or condition is based on anomalous jurisprudential opinion, it is not permissible to adopt it or adopt it.

The second topic came to explain the judge's position on the contracting's condition in matters of dispute if it contradicts the judiciary's requirements, and that the judge must observe the contracting's condition and rule accordingly as much as possible, because it does not invalidate their conditions except for what contradicts the Shari'a, and the parties 'agreement on this condition is in their interest and desire to Conduct this contract in this way, and seven evidences for this ruling are mentioned.

The judge must explain his ruling on the condition and its contravention of what the judiciary is required to do, and that this was done in compliance with the conditions of the contracting parties that agreed with a notable statement from the sayings of the jurists.

As for the condition based on an odd saying, the judge must nullify it.

Then the research was concluded with a statement of the judge's authority to nullify or change the condition that violates the judiciary's obligations
Including: whether the condition is contrary to Islamic law or includes severe harm to one of the parties to the contract,
Or it included a corrupt intention and a ruse against usury, so the judge at that time has the authority to strive to change the condition or nullify it.