عبدالله جبار خشان قاعدة تعارض المانع مع المقتضى دراسة من وجهة نظر قانونية مقارنة بالشريعة الإسلامية

Abstract

Abstract:

 For the purpose of interpreting the contract, determining its binding force, and clarifying the possibility of its implementation or not, due to the invalidity or attachment that may surround it, this requires possessing important tools that help the parties in general and the judge in particular. Perhaps among those tools are the rules of jurisprudence, the most prominent of which is the rule of the conflict of the impediment with the requirement, due to its effective role in describing the validity of contracts or not when accompanied by impediments that require their implementation due to their connection to an essential goal that cannot be avoided or ignored. This is because the issue of the conflict of requirement with the prohibition is one of the essential and important issues that must be surrounded with the necessary attention, especially the logic of Islamic law, which is to give precedence to prohibitions over commands whenever the prohibitions constitute great harm compared to the commands that may be less than them or not equal to them. This, of course, makes the rule under discussion widely applied in practical life due to the frequency of conflicts and the constant need for an accurate weighting to resolve that conflict whenever possible