Jurisprudential Correctness of the Taʻlīqi (Conditional) Liability with the Critical Analysis of The Articles 691, 699 and 700 of the Civil Code of Iran

One of the jurisprudential challengeable issues is the problem of the requirement of tanjiz (Arabic: تنجیز being unconditionally operational) in the Islamic contracts and according to the opinion of some Islamic jurists, there is an ijma' (Arabic: اجماع consensus among Islamic Shia jurists) on the annulment of the taʻlīq (Arabic: تعلیق conditional) contract. One of the important and adaptable contracts is the contract of ḍamān (Arabic: ضمان liability) that according to the most of Islamic Shia jurists the mentioned ijma is in current and taʻlīqi liability is void. From the other side, some other jurists with the criticism of the proofs of the voidance of taʻlīq and also with adducing to the general evidences of the fulfilment of the contract oppose the decree of the annulment. In their opinion, it has been documented ijma (Arabic: اجماع مدرکی) and the main reason for its annulment (voidance) is the rational refusal of taʻlīq in contracts but different examples of the violation in fiqh is a proof not to accept this rational demonstration and also the validity of the title “mutual obligation or liability” for the inclusion of the general proofs of the fulfilment of contract is enough and taʻlīqi (conditional) liability has such feature. It seems that with observing the different opinions and their reasons, the arguments of the invalidity of taʻlīqi (conditional) liability do not have enough strength and it can be accepted the validity of it. This ordinance utilizes in the regulation and revision of Articles 691,699 and 700 of the civil code (which indicate the voidance of taʻlīqi liability) and through this way the insurance contract as one of its instances can be corrected.