The Jurisprudential and Legal Re-Investigation on the Separation the Intent from the Consent

The continued separation of the intent and consent (in the civil code especially in article 190 which has counted the intent and consent the principal provisions of the parties’ contract) creates the question of being lawful this separation in the mind of the researchers. Can we find an accepted aspect to this temporary separation? The Islamic jurists and law scholars have chosen two complete dissimilar opinions. The first have stepped two contradictory approaches. The first approach with reasoning and legal analysis has thought that intent is a topic implies to consent, therefore the bilateral and unilateral contracts with absence of consent like unauthorized transactions and enforced transactions because of intent lacking are void. The second approach based on psychological analysis finds intent and consent non separable basically. According to this approach, any bilateral and unilateral contracts consist of consent and consequently proving reasons of consent cannot be a proof for the invalidity of the bilateral and unilateral contracts with the lacking of customary consent. The second group with reasoning analysis is going to find a way with the possible temporary separation and cause the validity of added consent to intent; therefore, force and legal intent are coherent and unauthorized and compelled transactions are valid. The present research with criticizing the two attitudes states a new theory according to two principals. First, distinguishing different intent types from each other and second, the lawful (sharei) liability of the intent which is originated from customary consent. With this regard, the bilateral and unilateral contracts with absence of lawful consent are void. But still intent is available in the obliged and consequently the obliged actually is presumed intender.