امکان‌سنجی درج شرط خیار در عقد نکاح از منظر فقه امامیه و اهل سنت

Document Type : علمی - پژوهشی

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استادیار دانشگاه گیلان Assistant Professor at university of guilan

Abstract

Regardless validity arguments, require-ements and effects of option of conditions, determining the scope of its utilization needs serious attention. The question raised here is that is it possible to stipulate option of conditions in marriage contract in Sunni and Shia jurisprudence? Here are the two main ideas.
A group of Shia and Sunni jurists believe 
that not only the option of conditions but also the marriage contract is void because the aforementioned option is contrary to the requirement of the substance of contract. Another group, pointing out some reasons such as illegality of these conditions, believes that the option of conditions is void, not the marriage contract. However, the main reason bro-ught forth by the proponents of these ideas is the consensus on voidance. The first group believes that the consensus includes the option of conditions and the contract, and the second group limits it to the option of conditions. This research shows that all of the reasons of above-mentioned ideas have problems and it is unable to prove the voidance of the marriage contract and even the option of conditions; in other words, both the marriage contract and the option of conditions are valid.

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