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We show you the pillars of the contract in civil law on Trend today for all readers and troublemakers in the Arab world, where the correct answers are popular on the Internet.

Definition of the contract and its elements

A contract is the concurrence of two or more wills to produce a legal effect, whether that effect is the creation, transfer, modification, or termination of an obligation. A contract, likewise, is the concurrence of two wills to produce a legal effect, or in other words, the concurrence of two wills to create or modify a legal bond or terminate it.

Definition of a contract in French law

Article 1101 of the French Civil Code defines a contract as “an agreement whereby one or more persons are obligated towards one or more persons, to give something, to do an act, or to refrain from it.”

The definition of the contract in the language and in the terminology of the jurists

In the language, the contract is called the combination of the ends of a thing and its connection, and its opposite is the solution, and it is also called the meaning of tightening and strengthening the thing. From the meaning of the sensory connection between the two ends of the rope, the word was taken for the moral connection of the speech or between the two words. Anything that indicates commitment to something, whether it is an act or an omission, from one side or from two sides, because all of these have the meaning of linking and documenting.

As for the meaning that the jurists used for the word contract, it is not far from the linguistic meaning of it, rather it is an enumeration of it and a specification of what it contains of the generality, and the contract has two meanings for them, and it is given in two versions: among their expressions what indicates that the contract is a link between two words that results in a legal ruling by the commitment of one of the parties or for both.

This is in accordance with the entire agreement with the legal definition of a contract as the agreement of two wills to create, transfer, or terminate an obligation. Therefore, most jurists do not use the name of the contract on divorce, acquittal, emancipation and other things that take place with the words of one party rather than the words of the other party. While they call the contract of sale, gift, marriage, lease and other things that can only be done by linking two words from two parties. In addition to this, there are writers in jurisprudence who generalize, so they use the word contract for every legal act, whether it is concluded by the words of one party or not. It takes place only with the words of two parties. In the sentence, the books of jurisprudence mention the word contract, and sometimes you want it the general meaning, which is intended to act, and you mention it sometimes and you want the specific meaning, which is only done by linking two words that have a legitimate effect. This is the common and well-known meaning that it is almost unique to the term, and it is the meaning that comes to mind if the word contract is used. As for the second meaning, the word contract does not indicate it, except with a warning that indicates a generalization.

The first: It is the suspension of the words of one of the contracting parties to the words of the other, according to Sharia, in a way that shows its effect in the place. For these people, the contract is only in what happens between two people from a contract or a connection with their wills.

Commitment

The definition of commitment depends on the doctrine that is adopted in its regard, as two doctrines conflict with it:

Personal doctrine: which considers commitment as a bond between two people and is based on the idea of ​​the authority that the right confers on its owner. It deals only with some of the debtor’s freedom and part of his activity.

The materialist doctrine: which considers the obligation as a link between two responsibilities, as it represents a right owed by the creditor, and it represents a right owed by the debtor. The personal right must be stripped of the personal bond, i.e. from the relationship of the creditor with the debtor, and be seen as an element of the financial disclosure. The obligation can be defined as a legal bond between two persons, under which one of them, the debtor, is obligated to perform an action, or to refrain from a specific act. Accordingly, the commitment has three pillars: 1. The parties to the obligation, a creditor and a debtor.2. A legal bond whereby the debtor is obligated to perform a certain performance. The subject of the obligation, which is what the debtor must perform. The preliminary draft of the Egyptian Civil Code defined the obligation, as “a legal situation under which a person must transfer a right in kind, or perform an act, or refrain from an act.”

The difference between contract, obligation, and legal disposition

The contract is by agreement of two wills, an affirmative and an acceptance. As for the obligation, it is the act that includes the will to create a right or to terminate or forfeit a right, whether the act that results in an obligation is in exchange for an obligation from another side, as in selling and leasing, or if this obligation is unilateral as in the endowment.

Commitment to this meaning is more general than a contract in which two wills are required to meet, according to the view of the majority of jurists. However, some have singled out the obligation at launch with the state of the person’s own commitment. Therefore, they call it the conditions of the unilateral will, and in this sense it is opposite to the meaning of the contract.

As for disposition: it is what is issued by a person who is distinguished by his will, in word or deed, and on which the Lawgiver results in a certain result. It includes commitment and contract. The act is more general than the contract because it deals with what was by two wills, and what was by one will. It also deals with what created or terminated a right, such as divorce, or forfeited it, such as discharge. It also deals with what was not in it, such as informing a claim, acknowledging a previous right, denying it, or swearing to deny it. It is a confirmation of a right and not the creation of an obligation or a waiver of it.

Accordingly, any human action is not described as a legal act, except where the will has tended to produce a legal effect, and this effect is a direct result of the direction of the will towards it. But if the will does not intend to produce a legal effect that binds and binds its owner before the law, then we are not in the process of legal action, but an act of courtesies, such as inviting a friend to lunch.

Contract terms and conditions

Given that the contract is the concurrence of two wills to produce a specific legal effect, for this reason, it was necessary for the contract to have its pillars, which are: 1. The first pillar is the consensual agreement between its two ends.2. The second corner is the shop.3. The third pillar is the reason.4. The law or the contracting parties may add a fourth pillar, which is the form, and this is the formal contract. The loss of one of these pillars results in the invalidity of the contract absolutely. If there is no consent due to lack of discrimination and will, for example, or if the cause or the place is absent, or if they do not fulfill what the law requires, as if they were illegal, for example, the contract is void. Each of the parties to the contract enjoys capacity, and that the will of each of them is free from defects. The fulfillment of the contract’s elements is a condition for its contract, and the enjoyment of capacity and integrity of the will from defects is a condition for its validity. The penalty for missing one of the conditions of the meeting is absolute nullity. As for the penalty for losing one of the conditions of health, it is the ability to invalidate, or what is called relative invalidity.

Contract area

The scope of the contract is determined by the agreements that create obligations between persons of private law, so agreements related to branches of public law such as the treaty, which is an agreement between a state and another state and governed by the rules of international law, come out of its scope, which is an agreement between the representative and his electors and is governed by the rules of constitutional law, and the job is an agreement between the government and the employee and is governed by the rules Administrative law. However, even in the field of private law, the contract area is limited to agreements related to financial disclosure, so we exclude from its scope agreements related to personal status ties such as marriage, because marriage, although it is an agreement between spouses, but the law alone determines its effects, and therefore it is not considered contract in the proper sense.

pillars of contract

The pillars are the plural of a pillar, and it is the aspect of a strong thing on which its existence depends on being a part of its essence, such as the takbeer of Ihram for prayer and the formula for a contract. , Reason.

First: default

Consensus is the congruence of two wills. What is meant by will, here, is the will that tends to produce a specific legal effect, which is the creation, transfer, modification or termination of the obligation. Compromise is the cornerstone of the basic contract. If it is lost, the contract is not entered into. However, this mutual consent must be sound, that is, that the will of both parties to the contract is free of any defect, such as error, fraud, coercion or exploitation. If the consent of any of the contracting parties is affected by one of these defects, the contract is voidable in his favor. Article 89 of the Egyptian Civil Code stipulates that “the contract is concluded as soon as two parties exchange the expression of two identical wills, taking into account what the law decides above that, of certain conditions.” To conclude the contract.” However, the will, which is inherent in the soul, cannot have a specific legal effect, unless it appears outside, that is, unless its owner discloses it.

What is the will: Psychologists see that the will as a psychological phenomenon passes through four stages: The first stage: the stage of conception, in which the person evokes the legal action he wants to conclude. The second stage: the stage of contemplation, in which the person balances the various possibilities and outcomes. In the matter, and this stage is the essence of the will or is the will itself. And the fourth stage: the stage of implementation in which a person transfers his will from the latent soul to the outside world, so he discloses a specific will that tends to bring about a certain legal effect. Expressing the will is verbally, in writing, and by pointing circulated by convention. It is also by taking a position that the circumstances of the situation do not leave any doubt as to its evidence of the reality of the intention, that is, the expression of the will is identical to the reality of what it intended. The expression of the will may be implicit, if not provided by law, or the parties agree to be express.

It is considered as tacit acceptance that the agent implements the agency, as this indicates his acceptance of it. There is a big difference between silence and implicit expression. The implicit expression, which assumes that the person has taken a certain path, can be cut off in denoting his will. As for silence, it is a negative thing, not associated with any behavior or position, as well as not accompanied by a word, writing or sign. And silence cannot be considered a way to express the affirmative. This is because the offer is an offer, and the offer can only be benefited by a positive action, that is, a specific positive action directed at others. As for acceptance, the rule, as well, is that acceptance cannot be benefited from mere silence, as it is not attributed to a silent saying. As a general rule, it is inconceivable that silence is an expression of the will, which is a positive action, while silence does not include an affirmation because it is non-existence, and nothingness does not foretell something, and it also does not include acceptance. However, if mere silence is not considered acceptance, there are exceptional cases, in which silence can be evidence of acceptance, and these are cases in which silence is accompanied by circumstances and circumstances, and silence is called clothing. For example: 1. The view of the French judiciary that silence is considered acceptance, if there was a previous transaction between the contracting parties, and the offer was related to this previous transaction.2. Likewise, if the nature of the transaction requires this, as is the practice of banks to send a statement to their customers in the current account, then the customer’s lack of objection to this statement, at an appropriate time, is considered a dependence on him. If the offer results in a purely benefit for the addressee, then the silence of the person to whom the statement is addressed is considered acceptance. For example, if another person promises to sell him what he has, for a certain amount, if he shows his desire to do so, within a specified period. The latter is silent, so the silence of the promised becomes acceptance, because the promise is purely beneficial and does not obligate him to any obligation. As the offer includes an apparent benefit to the one to whom it is directed. The arrival of the expression is considered a presumption of knowledge of it, unless there is evidence to the contrary (Article 91 of the Egyptian Civil Code). If a date is set for acceptance, the obligor is obligated to remain in his offer, until this time elapses. Expressing the will, whether it is an offer or an acceptance, may be preceded by negotiations between the contracting parties in which the contract passes through different stages, such as the stage of the promise of the contract, the preliminary contract, and the contract with a deposit, and the contracting parties may not gather a council One, so the question of the time and place of the contract, or what is known as a contract between absentees, arises.

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