خيار العيب وفوات الوصف المشروط في عقد البيع
Date
2025-05-26
Authors
سهام محمد طالب الرجوب
Seham Mohammed Taleb Alrjoob
Journal Title
Journal ISSN
Volume Title
Publisher
Al-Quds University
Abstract
This study addresses the topic of the option of defect and the lack
of conditional description in a sales contract. It sheds light on the legal
and jurisprudential dimensions related to them through a comparative
analysis between Islamic jurisprudence and Jordanian civil law. Since the
principle of a sales contract is binding, since retracting it is considered a
change to an existing legal status, the presence of the option served as a
protective shield to guarantee the contract and establish the will of its
parties on a sound, free, and defect-free basis. Therefore, the presence of
options in a sales contract, including the option of defect, is considered a
right for one of the contracting parties that entitles them to ratify or
terminate the contract due to a defect in the specific item sold, which they
were unaware of prior to the contract. Jordanian Civil Law stipulates this
option and includes special provisions regulating it, its conditions, and its
exclusions. The Majalla (Memorandum of Judicial Rulings) also defines
it as a defect that reduces the price of the sale for both owners and
merchants, The study also clarifies the differences between the option of
defect and the right of revocation. Defects and some similar concepts, as
well as the consequences of their establishment, including the return of
the sold item and the cancellation of the sales contract, as well as the
claim for a reduction in the price in cases where the buyer may recourse
to the seller, and all the legal rulings and differing opinions regarding this
option.
The study also includes one of the most important options in a
sales contract. The study concluded that the validity and binding nature of
a sales contract represent the fundamental rule in contractual relations,
while its non-binding nature is an emergency matter within the contract,
requiring compliance with specific needs and necessities, with the aim of
achieving justice between the contracting parties. The legal importance of
the option is highlighted as a legal means of protecting the rights of the
contracting parties, enhancing confidence in sales contracts. The option
of defect and lack of description are fundamental rights that protect the
buyer from damages resulting from defects in the sold item or its non
conformity with the agreed-upon description. Options contribute to
defining the buyer's rights, as he has the right to either terminate the
contract or claim compensation based on the defects or lack of
description, thus protecting his interests. The study identified a group of
lapses that lead to the buyer's right to claim the option being forfeited,
such as his knowledge of the defect or his acceptance of it, as well as
cases of the sale being destroyed, as well as lapses of the option of
description, such as disposing of the sold item as the owner would have
done. The option of defect and lack of description is revocable before the
seizure without the need for mutual consent or litigation, while the
situation differs after the seizure, as it requires the seller's consent or
recourse to the judiciary.
Based on the previous results, the researcher recommended the
development of a legal mechanism to deal with defects and lack of
description in relation to electronic commerce, and the development of
legislation related to sales contracts to include clear texts related to the
options of defects and lack of description, in line with the new
developments in the market, especially the electronic market, and the
need to enhance legal awareness among merchants and consumers about
their rights and duties in sales contracts, which may reduce legal disputes,
and the need to reconsider subjecting the description option to a long
statute of limitations so that the implementation of the sales contract does
not become burdensome for both parties to the contract and prolong the
dispute.
Description
Keywords
Citation
الرجوب، سهام محمد. (2025). The option of defect and the absence of the conditional description in the sales contract Prepared