Implied Stipulations of Marriage Contract: Survey and Comparison of Some Examples in Imamiyya and Sunni Jurisprudence
Subject Areas : All jurisprudential issues
fateme Mirshamsi
1
(استادیار گروه حقوق، واحد تهران شمال، دانشگاه آزاد اسلامی، تهران، ایران)
Keywords: implied stipulation, condition of performance of an, the
, 
, condition contrary to th, condition of deputation, delegation and choice of divor,
Abstract :
Implied stipulation is the very obligation and fulfilment of the same, i.e.each of the parties to the contract may ask the second party for a certainquality, performance or nonperformance of an act, or the result of anothercontract within the contract in question. In one classification, impliedstipulations are divided into valid and invalid ones. Valid stipulation is onehaving the qualifications of the validity of stipulation. Otherwise, it is invalid.Invalid stipulation may cancel the contract when it leads to the loss of one ofthe general principles or conditions of the validity of a contract. The exampleis when the condition is unknown or contrary to the nature of the contract.Valid conditions may be divided into three classes: those of quality, ofperformance of an act, and of collateral events.If one of the spouses has asked another for a certain quality in themarriage contract, in case of nonsatisfaction the former enjoys the right ofcancellation. That is a kind of misrepresentation which brings about the rightof option. If the condition of collateral events is stipulated, the wife wouldhave the power or option of divorce and she can transfer it to the third partyby power of attorney. This condition makes the deputation contract obligatoryand it is a type of absolute deputation. The condition of option is notpermissible in marriage contract. Sunnīs allow deputation and delegation ofdivorce to the wife. They have not considered the right of dissolution ofmarriage contract unique to the holy prophet’s wives. They hold if thehusband makes the wife free to choose between continuation or dissolution ofmarriage contract, and she opts the separation and termination of marital life,the marriage contract would be dissolved. In Imamiyya jurisprudence,optional divorce is known to be the unique right of the holy prophet.
