Mitigating-Terms of Liability in Insurance Contracts in Islamic Law

In terms of the degree of freedom of the parties to determine their terms and conditions, contracts are divided into two types: negotiation and supplementary. In the negotiation type, where complete freedom is prevailing, terms and conditions which are already agreed upon by the parties become binding on them in the form of the provisions of the contract. However, in the supplementary type, the parties are not in an equal position in terms of determining the provisions of the contract. They are sometimes provided as a standard form and the weaker party is only free to either join or waive these conditions. Insurance contracts are of this type. The question that arises is whether there is freedom for the parties to determine the contractual terms in these contracts. If the answer is yes, then in light of the fact that the contract is supplementary, two issues shall be pinpointed: the degree of this freedom and whether the parties are in an equal position in terms of stipulating conditions such as mitigating terms. Mitigating terms of liability are those that, upon the agreement of the parties, reduce the degree of responsibility or damage entailed by the contract. As a result, the obliged party might pay a lesser amount following the realization of the damage. The regulations governing insurance contracts, as a supplementary type, were examined in this descriptive-analytical study. Maintaining that the parties to the insurance contract enjoy limited freedom in stipulating the terms of the mitigation of liability and its other provisions, findings suggest that the insuring party is in a superior position, and apparently the insurance regulations need to be modified to protect the insured (weaker party).