The effect of time and space in determining the moment of the formal contracts in Islamic jurisprudence and law

Abstract

There is no doubt that the contracts today are no longer in the way, which was held out immediately and be limited to the issuance of offer and acceptance that adds the status of consensual, but that the requirements of  public interest and the need to protect the credit of the contracts led to find another type of contract specified by a certain characteristic which is an official or formal. The legislator thinks that there is a need to such character, so it is necessary for us to seek the meaning of this formalism in Islamic jurisprudence and law which we've done in this research. We found that the intended formality here may be a legal one required by law that  contract could not be concluded without it or it may be a formal agreement imposed by the will of contractors, or it may be a legislative formality imposed by the Islamic legislator for some act is being correct. Whatever the case is, the violation of this formalism may lead to the nullity of the legal act such as the violation of the formalism drawn by the law, and sometimes to the corruption of the act of the violation of the formalism  painted by Islamic legislation. According to the authentic opinion in Islamic jurisprudence, the marriage contract is a formal contract as it is required, for being a legal contract, to be associated with the consent and the acceptance at the Council of the contract and the presence of two witnesses who can hear and understand the words of the two contracting parties together at one time in the House of the marriage contract. Iraqi legislator of the Personal Status Law has made the registration of the marriage contract by the court as necessary formality needed to prove this contract which is undoubtedly an official device made by legislator to prove this contract at dispute or denial before the court. The time and the place of this contract is determined by the presence of the two contracting parties and witnesses at the real House of contract, or at the House of the constructive contract in case that one of the two contracting parties is absent, and the moment of the declaration of acceptance of the Council at reading the book or the Board of conveying the message legally, and from the moment of  knowing the positive acceptance and receiving this acceptance by him legally. Of the formal contracts, as shown to us,  that the Iraqi civil law addressed is the insurance or official  mortgage contract  by making the registration of the mortgage in the office of real estate registration as a necessary formality  for holding the contract, otherwise this contract will be invalid. The moment of signing this contract is determined by the time and the place where the binder is practicing his competence in this regard with the presence of  the mortgaged and mortgagee in the House of the mortgage contract.