A Comparative Analysis of the General Theory of Arsh in Islamic Jurisprudence and the Principle of Price Reduction in the Vienna Convention

Document Type : Original Article

Author

phd private law

10.22091/ijicl.2024.8990.1053

Abstract

The review of traditional institutions is an appropriate policy for efficient contractual sanctions. Arsh” is one of the institutions that is mostly raised in the area of option of defect. The present paper tries to review the views of jurisprudents about Arsh in order to raise it as a general theory. However, this review did not mean that we are going to make a structural change in the nature of Arsh , but it is intended to perform a jurisprudential investigation into the matter. About the nature of the general theory of Arsh , it can be said that it takes a nature of damage and compensation, but it is raised as a result of a contract breach and as a contractual liability; in this case it will be in accordance with the rule. Regarding the basis of damage, the general theory of Arsh also has a dual nature. It is based on the contractual compensation, but if contractual compensation cannot be compensated in its broadest sense, compensation will be used in the form of civil and compulsory liability

One of the indisputable legal-historical rules in the Roman legal system is the rule regarding price reduction, which is similar to the institution of arsh (the difference in financial value between a faultless and defective property paid to the customer) in the Islamic legal system.. Of course, the basis of reduction of price is commutative justice that is the basis for contractual liability in the philosophy of the rights of contracts.

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Iranian Journal of International and Comparative Law

Articles in Press, Accepted Manuscript
Available Online from 03 March 2024

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History

  • Receive Date: 09 January 2023
  • Revise Date: 24 February 2024
  • Accept Date: 03 March 2024

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