The theory of "exploitation" in the laws of Arab countries and comparing it with similar institutions in Islamic jurisprudence

Articles in Press

Document Type : Original Article

Authors

• mahdi moftakhari ¹
• mojtaba zahedian ²
• sayyed mohammad mahdi qabuli dorafshan ³

¹ chairman and representative of the administrative justice court in khorasan Razavi province

² azad university of mashhad

³ ferdosi university of mashhad

10.22067/jfiqh.2023.79096.1457

Abstract

In the contemporary legal books of Arab countries, a theory called "exploitation" is mentioned under the discussion of the pillars of the contract and in its first pillar, "compromise" and in defects of compromise. In these writings, examples of defects of the will are limited to ignorance, error, refinement, reluctance and exploitation. What they mean by exploitation in transactions is that the individual's will during the transaction is so weak that the other party abuses and exploits it, regardless of whether this weakness is caused by an internal state. or due to a material reason. In any case, this weakness or defect in the will makes the contract out of balance, and accordingly, there will be no proportionality between the obligations of the strong and weak parties. In the laws of Arab countries, special measures are foreseen for exploitation, but in jurisprudence and consequently, although there are concepts close to exploitation, there is no place for such an institution. It seems that it is possible to use specific arguments and general rules such as the rule of justice, fairness, and the rule of prohibiting injustice to establish this institution in our jurisprudence and law.

Keywords

• exploitation theory
• unfair terms
• distressed sale
• lesion in the contract

Main Subjects

• Jurisprudence and private law

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