جهالة المعقود عليه في العقود المعاصرة “دراسة مقارنة”

The Ignorance of the Contracted Party in Contemporary Contracts "A comparative study "

The development of technology has led to the emergence of models of contracts and forms of transactions, represented by the electronic contract and the artificial intelligence contract. Although these contracts have a special nature and procedures, they remain subject to the traditional contract theory. With regard to the contracted party, it must be known and specifically specified. For ignorance.
Ignorance in the contractual matter depends on a psychological and intellectual state that prevails over the contracting party when concluding the contract, and is essentially the result of the lack of knowledge of the contractual matter, or the lack of a cognitive mental image on the part of the contracting party about the thing that is the subject of the contract. It is lack of knowledge and lack of knowledge of the facts of the things that are the subject of the contract. A person concludes a contract while he is in full mental capacity, but under the influence of ignorance, which may focus on the item sold, the price, the term, or other basic elements of the contract. Since ignorance is considered a state existing in the mind of the contracting party and himself, it is a negative description that affects the conclusion of contemporary contracts. Through the lack of knowledge of the contractual matter, which results in the absence of one of the basic conditions of the contractual object, the jurists did not agree regarding the ignorance of the contractual object and its effects. Due to the difference in their point of view regarding the extent of the existence of reasons that cause ignorance resulting from the lack of knowledge of the gender, type, description, purpose, amount of the contract, and not specifying it, and between the invalidity and corruption of the contract, the Islamic schools of thought (such as the Imami, Maliki, Shafi’i, Hanbali, and Zaidi) see the invalidity of the contract due to the existence of ignorance of all kinds, because Knowledge and designation of the contracted person is a basic condition. However, the Hanafis considered that the presence of ignorance at the heart of the contract leads to its invalidity, and anything else leads to the contract being invalidated.
While the laws under study (the Iraqi Civil Law, the Yemeni Civil Law, and the Egyptian Civil Law) agreed to specify the subject of the contract with both its elements of sale and price, they did not specify knowledge of it, and this condition is agreed upon by the Islamic schools of thought, with the exception of the Iraqi legislator, who stated that knowledge of it suffices for the need to describe it or tariff.
With regard to ignorance, we have adopted the ideas brought by Islamic jurisprudence, such that ignorance is influential, which is obscenity, and what is included within it, such as moderate ignorance, which includes ignorance close to obscenity, and ignorance that is not effective, over which there is no dispute that what is meant by it is minor, and this is what the Yemeni legislator came up with, and he is the one who An advantage over Iraqi and Egyptian civil law.
The research problem of our topic (the ignorance of the contracted party in contemporary contracts “a comparative study with Islamic jurisprudence”) was represented by the absence of standards through which to clarify the ignorance, as the legislation was not successful in setting an accurate standard that shows the type of ignorance in the contracted party, and it did not explain the reasons. Which leads to the ignorance of the contracted person sufficiently. When it formulated the text specifying the contracted object, it narrowed down the reasons that contribute to achieving the ignorance of the contracted object, so it limited itself to specifying the character, gender, and amount of the contracted object.
We dealt with the research according to a scientific plan consisting of an introduction and three chapters, and we connected them with a conclusion. In the first chapter, we presented the concept of the ignorance of the contracted party in contemporary contracts, while the second chapter was entitled Reasons for the ignorance of the contracted party in contemporary contracts. As for the third chapter, we concluded it to explain the provisions of the ignorance of the contracted party in contemporary contracts. Contemporary contracts.
In the above, we followed the inductive and comparative analytical approach, as the research is comparative in Islamic law and jurisprudence. In Islamic jurisprudence, we focused on the doctrine of the Imami, Hanafi, Maliki, Shafi’i, Hanbali, and Zaidi schools. Regarding the laws, we took the Iraqi civil law, the Egyptian civil law, and the Yemeni civil law.
The research found that there is a convergence between the position of the Iraqi civil law and the legislation in question with the doctrine of the Imami, Shafi’i, and Hanbali regarding the ruling on a contract that is affected by ignorance in the contract concluded, as the ruling on the contract is invalid, and the reason lies in preventing ignorance of the contract concluded; Because it leads to dispute, and prevents the validity of the contract and that the objects differ according to the desires of the contracting parties. However, the Hanafi and Maliki jurisprudence violated the legal and legal consensus and considered the contract invalid unless it affected the essence of the contract. It became clear in the result of this study that the Iraqi civil law has legislative deficiencies in the issue of regulating ignorance. And determining how to achieve it, so the study recommended amending the texts of Civil Law No. (40) of 1951 that are relevant to the subject of our research, specifically Article (128) thereof