Document Type : Original Article
Authors
1
. Faculty member (Ph.D) of the Department of Jurisprudence and Fundaments of the Islamic Law, Payame Noor University , Tehran , Iran.
2
Associate Professor, Faculty of the Department of Jurisprudence and Fundaments of the Islamic Law, University of Tehran, Tehran ,Iran.
3
Assistant Professor of the department of Islamic jurisprudence and law, University of Sistan and Baluchestan, Zahedan, Iran,
Abstract
The conditional option in the transaction is rational and legal logic accepts it. However, in Article 1069 of the Civil Code, the Iranian legislature has invalidated the stipulation option in the marriage contract and specified: "The condition of termination of the marriage contract is void ...".There is also disagreement among Islamic jurists about the nature of marriage.The main question is whether the condition of the option in the marriage contract is invalid or not? and Which approach with the nature of marriage, Stipulation of an Option is invalid?In this article, which has been written in a descriptive-analytical method with library tools, an attempt has been made to re-examine this issue from a jurisprudential and legal perspective.Studies show that considering that there is no statement from the infallible Imams in this regard and the arguments accepted by the jurists have not determined the task in this regard, various ijtihad reasons and legal justifications have been provided by jurists of jurisprudence and law to prove the conflict between the Stipulation of an Option and its invalidity in marriage, which are debatable. Therefore, it seems that the view of explaining the nature of transaction and exchange of marriage is preferable and acceptable. Therefore, the stipulation of an Option does not conflict with the mentioned nature and like other exchanges, the inclusion of the stipulation of an Option in the marriage contract is permissible and correct and is binding. Considering the benefits of this matter, which can be applied in accordance with the needs of today's world for each couple, in particular, in order to protect and respect the interests of the wife, it is suggested that the legislator take a realistic approach and also create a new order in family law, regarding the amendment of Article 1069 of the Civil Code.
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