Limits of the Governance of the Parties’ Volition in the Determination of the Contractual Conditions in the Laws of Iran and England as well as in Imamiyyeh Jurisprudence

Abstract

Like contract, condition is the manifestation of the governance of the parties’ want and will and it plays direct, intermediated and considerable roles in the endorsement of the contract; according to many of the jurists and jurisprudents, condition is the valedictory stimulator and the creative motivation of every contract and it is possible for many of the contracts not to reach a final stage in cases of no agreement on the conditions. Although Iranian and English jurists and even Imamiyyeh jurisprudents realize condition as a corollary principle for such a reason that a proposed condition is a contractual one and all conditions would be insensible in the absence of contract; due to the same reason, it is mostly believed that conditions persist due to their corollary nature with the continuation of the contract and it is following the diminishment of the contract that the condition will be also lost; however, it will be seen in practice that although condition is in terms of creation dependent on the contract but many of the conditions keep on living even with the diminishment of the contract. These conditions might have been predicted for a time after the diminishment of the contract and this is a subject that is evident in general and private contracts and even international protocols and treaties in such a way that, as a principle, a condition can have a vast and endless realm and it is based on this principle that conditions can be inserted in many of the cases into the contracts and, then, reason based on the principle of the freedom in determination of contractual conditions that all the conditions mentioned in the contract are binding; the borders of their realm are determined based on the freedom in the determination of the contractual conditions. Although, as it will be seen, there are limitations set for the governance of the parties’ will by the governments in the legal systems, these limitations have no effect on the influence of the conditions and this will has been supported in the contracts through the intervention by every country’s legislature considering other principles, including the principle of good will (in the international treaties), principle of fairness (in the laws of England) and principle of the denial of hardship and difficulty and the maxim of no-loss (in the laws of Iran and Imamiyyeh Jurisprudence); however, from the perspective of the public order, there are constraints set for its implementation. Thus, it will be seen in this article that the individuals are not so much free in the determination of the conditions due to the governments’ interventions and the jurisprudents have even expressed as an axiom that “all the general principles have been specifically specified”. Based thereon, there are limitations set for this principle and, in many of the cases, these limitations are not only not contradictory to the governments’ governance but they are also consistent with the public order and good virtues but the governments have taken measures in line with limiting them based on the public expediencies so the realm of the conditions are determined considering these limitations in every country.