Özet:
The principle of freedom of will is considered one of the important and fundamental principles in Islamic jurisprudence and law. One manifestation of the exercise of freedom of will is the right to terminate a transaction with a conditional option. The application of a conditional option in contracts is easily accepted, although there are disagreements in some cases of contracts such as marriage, waqf (religious endowment), and guarantee. However, the application of a conditional option in unilateral acts has faced strictness and obstacles, and many jurists have tried to justify the non-application of the option in unilateral acts. The common opinion among scholars is that a conditional option is not valid in unilateral acts, and their evidence, in addition to consensus, includes rational reasons, some of which suggest that unilateral acts absolutely do not accept conditions, while others suggest that they do not accept the specific condition of an option. In this research, we will explain the arguments for invalidity and critically examine them.
Otomatik Özet:
Since a conditional option (khayār al-shart), like other conditions, is understood to require both a beneficiary (mushrat lahu) and an obligor (mushrat ʿalayhi), this concept exists in contracts (which rely on two parties); but can this concept be extended to unilateral acts (which rely on one party) based on evidence such as general rules regarding conditions as a basis for the principle of freedom of will?
4: 218) The author of ʿUrwah also states in his commentary on Makāsib: “The principle requires the validity of a conditional option in unilateral acts, and the obstacle is limited to consensus” (Qism al-Khiyārāt: 32) And Sayyid Ruhani in Fiqh al-Sadiq (vol.
Therefore, the result of the discussion is that the necessity of the rule of the conditional option in unilateral acts is established (al-Muhaqqiq Yazdi, Hashiyat Makasib, vol.
7. The conditional option in a unilateral act requires the restoration of something non-existent Al-Muhaqqiq al-Khuyee, in raising an objection to the flow of the option in a unilateral act, says: “The apparent meaning of the condition is that the conditional party is in the position of establishing something and creating something for consideration, so that if the one subject to the condition violates it, an option is established for the beneficiary, and unilateral acts are certainly like Divorce, manumission, and release are, according to the common understanding, outside of this scope; because these three involve the removal of something and its elimination.
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