Conflict betweenContract Definition and Sale Definition in Islamic Jurisprudence and Western Legal Systems

In this paper we review the conflict within Article 183 and Article 338 of Iranian Civil Code. The source of this conflict lies in the major role that obligation and the possessory nature of the contract of sales play in defining contracts. However, as this kind of conflict may also be observed between all other possessory contracts that have been referred in Civil Code, we have analyzed this aspect with some other articles of Civil Code even in the field of marriage contracts. This conflict has not been taken into account in much of the earlier literature on civil law. Nonetheless, many contemporary prominent jurists and famous authors have focused on this conflict, providing an effect on the notion of obligation in the Western law. Our aim in this article is then to provide a critical study of the conflict and to provide solutions for it. We offer the best interpretation with an emphasis on the distinction between the concept of obligation in Islamic jurisprudence and in the Western legal systems.