الإعفاء والتخفيف غير الإرادي من المسئولية العــقـديـــــــة (دراســــة مقارنـــة)

Abstract

Abstract This research examines the subject of exemption and mitigation of involuntary contractual liability. In its opening, the research acknowledges that the will establishes the contractual obligations originally, and thus the will amends the conditions in terms of exemption, mitigation or maximization. However, this Amendments can be done against the will in some exceptional cases, in the theory of impossibility and hardship in which the researcher noted some gaps which can be considered short comings in the legislation and a defect in application and divergence of views among jurists. The research addresses both doctrines (impossibility and hardship) that lead to exemption or mitigation of involuntary contractual liability which render performance impossible or frustrated due to occurrence of supervening (unexpected events) and this remedy is imposed by the low to discharge the contracting parties from unforeseen risks where performance has become impossible or extremely burdensome. The research explains the concept of impossibility theory, its terms, types and impact when such concept is applicable. In addition, it illuminates the Islamic jurisprudence opinion in this regard with focus on the circumstances surrounding the development of force majeure theory, its terms, basis and impact from the perspectives of both the Islamic jurisprudence and law. The research adopted the descriptive and analytical methodologies as well as inductive reasoning in reference to the legal provisions, highlighting and analyzing the legal and jurisdictional provisions in order to address the subject under discussion, along with holding comparisons between the opinion of Islamic jurisprudence and legal systems but focusing on Sudanese law. A number of findings and recommendations have been established by the research. The key findings include that one of the shortcomings in Sudan legislations is limiting the impossibility of performance to contracts that have a binding effect on both parties while excluding contracts that have a binding effect on one party, leaving the issue of partial performance and timeframe impossibility subject to the opinions of jurists. On the other hand, the Sudanese legislator has effectively set calculative standard besides the objective standard to evaluate the degree of hardship arisen from supervening events, however it stipulated the exceptional incident to be comprehensive which is incorrect linking. The research suggests a set of recommendations, namely: Sudanese legislator needs to include provisions that legalize nullification of contracts by doctrine of law to govern contracts that have a binding effect on one party, as well as, contracts that have a binding effect on both parties. On the other hand, the research calls for the abolition of the general assumption with regard to unforeseen events in order to maintain justice and, in line with the Islamic jurisprudence in this regard.