الاختلاف في جنس المعقود عليه “دِراسة مُقارنة بالفقه الإسلامي “

The difference in the gender of the subject (A comparative study)

The subject of the difference in the gender of the contracted person is one of the important topics in civil law. Often in most cases we find that one of the contracting parties does not get what was agreed upon. So thing is different from what was stated in the contract. This difference affects its validity because there is a contrast between the contractual situation and the actual situation of the contracted person. This difference changes the subjectivity or description of contract in a way that leads to the loss of the intended benefit and the gross disparity in its reality which affects the conclusion of the contract and its validity. The legal acts however their kinds demand the similarity of gender between the contractors. The duty of contractors is the consideration of the gender and the existence of the thing on its state without change in its attitude. This duty or obligation is an obligation to achieve a result because the will is directed to a specific thing in its name. The demise of its name and benefit leads to the two wills are not meeting and thus not achieving that result, which affects the contract system.
Also, the subject of the contract whose gender is different is not only the subject of an act issued by two sides (the contract), but may be the subject of a legal act issued by one side (the singular will). The difference of gender might be the subject of any of them because of its many applications and numerous legal provisions. Allegation of a change in its subjectivity does not take place without restriction or condition. The diversity of the gender of the subject does not come arbitrarily, but rather requires the availability of certain conditions that lead to a difference in the gender of the subject, including the difference in the name of the subject and the loss of the intended benefit from it after proving that claim by the means established by law. It is this matter that motivates the legislator to impose a legal provision for it, whereby he made the contract void when there is a difference in gender. Therefore he concludes that the contract does not lead to the achievement of the purpose of undertaking legal actions. It is restricted to the demise of its subjectivity at the stage of the execution of contract. The provision by which a gender difference is made is different from the provision by which it is arranged after it is acted upon. If the difference of gender is after the contract has been completed, its implementation is flawed