بازپژوهي ماهيت اقاله در فقه و حقوق وضعي ايران

Research on the nature of the cancelling of the contract in jurisprudence and legislated law of Iran

Iqala (cancelling of the contract) is a legal act that is formed by sidesʹ satisfactory contract and makes it breakup. Imami, Hanbali and Shafei Jurists revocate the Iqala. Hanafi Jurists account Iqala revocation into sides of contract, but a new transaction into outsiders. From the Maleki jurists viewpoint, Iqala is a new transaction, but civil code accounts the Iqala Tafasokh (breaking up by sides of contract). It seems that by reason of satisfaction, which is principal element and nature of the contract, Iqala is an indeterminate contract. Unlike the views of maleki and hanafi jurists, Imami, Hanbali and Shafei Jurists believe that Iqala doesnʹt make shofaa. According to some jurists, on the base of being a new contract of the Iqala, it is possible to increase or decrease of the saman (recompense of the transaction). On the base of being a transaction of Iqala, it is not possible to breakup (Iqala). On the base of being a new contract of Iqala, perishing of the Avazein (price and its subject) or one of them, suppresses to breakup (Iqala) the contract. Maleki and Hanafi jurists allow the Iqala and making an option in that; but Imami, shafei and Hanbali jurists believe otherwise.