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11CENTRAL ASIAN ACADEMIC JOURNAL ISSN: 2181-2489
OF SCIENTIFIC RESEARCH VOLUME 2 I ISSUE 2 I 2022
THE GENESIS OF THE DEVELOPMENT OF TRANSACTIONS CONCLUDED AS A RESULT OF DEFECTS IN THE ABILITY TO BEHAVE
School of Law Arbitrator and Mediator Lecturer at the Department of Civil Law
This article analyzes the transactions, the procedure and conditions of their conclusion, the grounds for invalidating the transactions. This relationship is studied by comparing the two legal systems to what extent they are resolved in ancient Roman law and Islamic law. Special attention is paid to the legal consequences of transactions concluded by persons with limited or incapacitated rights, issues of restitution. The issues, grounds and consequences of finding invalid agreements made by individuals who do not understand the importance of their actions, as well as various approaches of scholars in this regard are also analyzed. The article discusses the changes in the institution of the treaty during the stages of development of Roman law, as well as differences in the invalidity of treaties in the four sects of Islam and the procedure for their annulment. However, it also addresses the participation of women and minors as parties to the agreement. The means of proof used to annul a treaty concluded in Islamic law are described, and the concepts of confession, testimony, and oath are defined. The article also addresses the issue of appointing a guardian or trustee in respect of incapacitated persons.
Keywords: Roman law, Islamic law, agreements, unilateral agreement, bilateral agreement, invalidity of agreements, limited legal capacity, incapacity for work, lack of legal capacity.
One of the most important institutions of civil law is the treaties. As the market economy and trade relations develop, the types of transactions concluded by individuals and legal entities are also increasing day by day.
In our country, until the end of the XIX - beginning of the XX century, civil relations were regulated by Islamic law, but after the invasion of Tsarist Russia, the rules of the Romano-Germanic legal system based on Roman law began to apply. Issues such as the conclusion of agreements, their recognition, recognition of their validity have developed and formed on the basis of this legal system. This article analyzes the issues of invalidating agreements in ancient Roman and Islamic law states. Also, in covering the topic of this article, Russian scientists such as D.V., Dojdev, V.V.Struve,
David Allen Larson
Professor of Law at the Mitchell Hamline
Muniskhon Yuldosh qizi Usmonova
Tashkent State University of Law,
david.larson@mitchellhamline.edu
asinum57@gmail.com
ABSTRACT
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O.M.Pasheva, O.A.Omelchenko, O.S.Ioffe, S.Jobs, K.Jekman, R.Monika such as the works of scholars from other foreign countries. In addition, the views of great thinkers of Islamic law, such as Burhaniddin Marginoni, Sheikh Muhammad Sadiq Muhammad Yusuf, Dr. Ali Muhiyuddin al-Qaradaghi, on the agreements reached as a result of shortcomings in the ability to act were analyzed. Uzbek scientists R.Yusuvalieva, Z.Shomuhammedova, V.Topildiev, S.Iskhakov, R. The research of Rakhmanov and others in this regard was studied. The article used comparison-comparison, analysis-synthesis and historical methods.
Roman law formed the basis of ancient civilization and served as the foundation for all the states of continental Europe where the Romano-Germanic legal system existed. Roman law has a special role not only in the development of civil law relations, but also in other areas of law. Nevertheless, in ancient Roman society, civil law first emerged as a fundamental branch of law. In Rome, the institution of agreements, which is the most basic component of civil law, was widely used, and a mechanism for its regulation was also developed. In particular, in the process of concluding a transaction, it is seriously studied whether the subjects of civil law - individuals are legal or not. Accordingly, transactions entered into may or may not be considered valid on certain grounds.
Modern Roman jurists emphasize that the main sources for studying the science of Roman law are the laws of Table XII (Leges duodecim tabularum), the opinions of Gay institutes, Florentina, Martian, Ulpian and other jurists, codes, digest, institutions and novels developed during the reign of Emperor Justinian [ 1. 13-b].
During the development of Roman law, agreements, the conditions for their invalidation, the types of agreements that are not considered valid, and the legal norms governing them became more and more sophisticated. For example, the conclusion of agreements, their resolution at the time of disputes was initially based on the norms of customary law in oral form, while in 451-450 BC after the development of the laws of Table XII, social relations in the country were regulated by it. The ancient Roman historian Titus Livius states that the laws of Table XII are the source of public and private law (fons omnis publice privatique... iuris). It includes all the relationships that exist in everyday life: family, inheritance, property, legal capacity, agreements, contracts, land use,
In particular, Table V of the laws of Table XII is devoted to testaments, which are a treaty and a unilateral agreement, which states that those who left instructions to their farms and dependents after their death will be provided with these instructions [2]. This, of course, implies that the testator is legally capable and able to understand his actions. It is also stated that if a person is insane, the control over him and his property will be taken over by his father's relatives (agnat) or relatives. Provisions on invalidation of a
will made as a result of a defect in legal capacity are still present in the civil codes of various states. For example, in Article 1130 of the FC of the Republic of Uzbekistan, in Article 1131 of the FC of the Russian Federation, This is reflected in Article 1056 of the Criminal Code of the Republic of Kazakhstan and Article 1257 of the Criminal Code of Ukraine. However, the testamentary rules in the table were also used in the development of the famous Napoleonic Code [3. 56-b].
Table VI of the laws of Table XII deals with agreements, which contain the following explanation: 22-b]. That is, if the pledge agreement was made in the presence of five witnesses, it was considered valid and there was no doubt about it. However, according to Table VI, it is sufficient to cite the statements made at the time of the transaction. Those who denied their words were fined twice [5. 7-9-b]. Witnesses involved in concluding the agreement were required to testify in cases of dispute as to whether the parties were legally competent or not. It should be noted that the sources of Roman law do not specify the agreement and the contract.
In the time of Justinian (527-565), the conditions for the validity or invalidity of agreements were first developed by Roman jurists, and the agreement was not considered valid if it did not meet the following conditions:
1) The consent of the parties and the ability to express their will;
2) Existence of the subject of the contract;
3) Existence of the basis (purpose) of the contract;
4) The ability of the subjects to enter into a contract [6. 103-b].
Not all contracts are legally recognized. Legally recognized contracts consisted of the necessary features, that is, an agreement reached between legal entities in the form prescribed by law on a particular subject. If none of the signs specified in the law were present, then there were grounds for recognizing the contracts as invalid. Depending on the degree of recognition as invalid, contracts are divided into contracts that do not exist, are not absolutely real, and are recognized as relatively unreal [7. 76-b]. Nonexistent contracts (negotium nuulum) include contracts that cannot be enforced or that do not comply with the rules on the form of the contract. Such agreements had no effect. Contracts recognized as absolute (negotia irrita) include contracts entered into by persons without legal capacity, aimed at impossible prestige, and concluded in violation of law and morality. Contracts that are declared to be absolutely invalid or if their cause is determined, they have been recognized as invalid from the time of their conclusion and have no legal effect. Contracts that have been declared invalid or invalid (negotia rescindibilia) have been annulled by a judge at the request of the person concerned. Such contracts include contracts concluded by mistake, deception or intimidation, contracts concluded as a result of incapacity for work, as well as contracts that cause harm to minors [7. 77-b]. entered into agreements aimed at impossible prestige and
concluded in violation of law and ethics. Contracts that are declared to be absolutely invalid or if their cause is determined, they have been recognized as invalid from the time of their conclusion and have no legal effect. Contracts that have been declared invalid or invalid (negotia rescindibilia) have been annulled by a judge at the request of the person concerned. Such contracts include contracts concluded by mistake, deception or intimidation, contracts concluded as a result of incapacity for work, as well as contracts that cause harm to minors [7. 77-b]. entered into agreements aimed at impossible prestige and concluded in violation of law and ethics. Contracts that are declared to be absolutely invalid or if their cause is determined, they have been recognized as invalid from the time of their conclusion and have no legal effect. Contracts that have been declared invalid or invalid (negotia rescindibilia) have been annulled by a judge at the request of the person concerned. Such contracts include contracts concluded by mistake, deception or intimidation, contracts concluded as a result of incapacity for work, as well as contracts that cause harm to minors [7. 77-b]. they were recognized as invalid from the time of creation and had no legal effect. Contracts that have been declared invalid or invalid (negotia rescindibilia) have been annulled by a judge at the request of the person concerned. Such contracts include contracts concluded by mistake, deception or intimidation, contracts concluded as a result of incapacity for work, as well as contracts that cause harm to minors [7. 77-b]. they were recognized as invalid from the time of creation and had no legal effect. Contracts that have been declared invalid or invalid (negotia rescindibilia) have been annulled by a judge at the request of the person concerned. Such contracts include contracts concluded by mistake, deception or intimidation, contracts concluded as a result of incapacity for work, as well as contracts that cause harm to minors [7. 77-b]. contracts that harm minors [7. 77-b]. contracts that harm minors [7. 77-b].
In Roman law, the first condition for the validity of the agreement was the consent of the parties to the agreement and the expression of their will. But scholars have different views on the aspects that underlie it, and they differ from each other. From the earliest times of ancient Rome to the time of Justinian, the consent of individuals to a treaty was regarded as a formal method and was believed to be an affirmation of an individual's genuine desire to enter into a treaty. It was not the person who actually agreed or disagreed with the deal, but the fact that he approved the deal and expressed his will. In order for the parties to be eligible for the contract, they needed to know why the contract was being made and what issues it covered. However, even though the theory of will was recognized, it was secondary from the classical period to the post-classical period. The interest in clarifying the question of what the parties actually meant when concluding the contract arose only when the expression of will was not clear. The significance of the will was finally studied on the basis of the
rules established in the time of Justinian. During this period, what the parties said was not only ignored, but what they meant was also an important issue.
Roman jurist O.A. Omelchenko states in this regard: "The most important aspect of the conclusion of a contract is the ability of an individual to express his will. In this case, the agreement of the parties - the will of two people - means a combination of intersections on the same subject "[8. 96-b]. A person was an adult and could enter into a contract only if he could express his will, that is, if there were no defects in his legal capacity.
We can see from Cicero's transcripts that after the practical problems of the individual's ability to express his will arose during the conclusion of a contract, a separate class of lawyers dealing with the conclusion of contracts or wills began to form, and they also examined the legal capacity of individuals in the transaction process. Many mistakes were made in concluding various contracts and wills, and as a result, disputes arose. To prevent this, it is recommended that transactions be formalized by individuals or agencies. Such individuals can also be considered as notaries today.
In legal practice, there has been much debate as to whether the testator's will was written voluntarily by the testator and reflected his true will. After that, in the practice of the praetor, as well as in the works of reputable lawyers, an important rule was adopted: "the will of the testator must be determined and taken into account" [10. 100-
As mentioned above, in Roman law, the parties had to have the capacity to act in order for the agreements to be considered valid. Legal capacity is the ability to take legal action on one's own behalf and voluntarily and to perform the obligations assumed personally. Behavior was also able to shrink or expand depending on a person's gender, age, and mental capacity. Individuals with legal capacity (capacitas juridicara) may have legal capacity (capacita agendara), that is, enter into a legal relationship on their own behalf and of their own free will, or not be able to personally respond to the offense (delict) they have committed. For example, Tziti may inherit from his father, but is unable to manage it due to his mental illness.
In ancient Rome, the ability to deal with individuals who could not be held accountable for their actions, who could not control them, who were mentally and physically retarded, was limited. If the condition of such individuals was accompanied by symptoms of idiocy (dementia, amentia) and rabies (furor), they were incapacitated during illness, and incapacitated while healthy. Persons who overspend (prodigi), that is, those who recklessly waste inherited property and harm the financial situation of the family by such actions, are also considered to have limited legal capacity. Their legal capacity, according to their content (impuberes infantia majores), is equal to that of the disabled. Sometimes the legal capacity of persons with physical disabilities is also
b].
limited (only when it comes to legal actions that are difficult to perform due to permanent physical disability). Guardians have been appointed in respect of such persons.
If the mentally ill are always in a state of illness, their ability to treat is completely limited (amentes, mente capti), while the mentally ill are occasionally in a healthy state, those who are fully capable of treatment during this period (furiosi cum lucidis intervallis). Guardians (liberam administrationem bonorumra) had the right to freely manage the property of the mentally ill [11. 56-b]. If a mentally ill and physically ill person is under the age of 25 or over the age of 70, his or her legal capacity has been verified by a praetor. Even a citizen with rheumatism and epilepsy could be considered disabled.
In Roman law, a transaction concluded as a result of a defect in the ability to act, that is, a restitution was applied if the person in the process of concluding the agreement did not understand the importance of his actions or could not control them and proved it [13. 224-b]. Restitution is made if there are grounds on the part of the person requesting it (i.e., if the contract proves that it was made through intimidation, deception or error, a defect in legal capacity, and in other ways). If the said grounds are present, the praetor finds them justified, the legal consequences of the action taken are terminated and all action is returned to its original state or resumed. For example, in the time of the divine brothers Marcus Aurelius and Lucius Verus, a man named Rutilius Severus, who was his guardian because his wife was mentally ill, appealed to the praetor to invalidate the agreements made after his wife lost her health. Ulpian explains this by writing that it is an unusual but very original situation in his work.
In addition to Roman law, Islamic law also deals with transactions, especially trade agreements. The Qur'an, the main sources of Islamic law, the hadith, the ijma, and the qiyas refer to various agreements: wills, trade agreements, sureties, and pledge agreements. The word agreement in Arabic means "binding", "strengthening", "birth", "goal", "accumulation", "agreement" [14]. In the terminology of the Shari'ah, an agreement is any obligation that a person is committed to fulfilling. Liabilities that are created by both parties on the basis of an offer and acceptance are also called an agreement. The deal can be basically bilateral, as in trade. There are also unilateral agreements, which include vows, divorces, and oaths. The covenant of slaves with Allah is also called a covenant. In Islam, it is not necessary to have any action as the subject of an agreement, but it can also be inaction or cessation of any action. In Islamic law, it is one-sided to make a vow. agreements, which lead to the transfer of property to charity or waqf according to the oath of allegiance.
The economic agreements of jurisprudence mainly consist of the following agreements: trade agreements, lease agreements, peace agreements, musaqat, ie
CENTRAL ASIAN ACADEMIC JOURNAL ISSN: 2181-2489
OF SCIENTIFIC RESEARCH VOLUME 2 I ISSUE 2 I 2022
agreements related to land irrigation, shirkat, vadi'a, ie agreements related to the receipt and deposit of deposits, loan agreements, expenditure, that is, agreements on the sale of money, agreements of authority, agreements, such as agreements on the one hand, labor, on the other hand, agreements on the condition of expenditure of funds, negotiations, ie agreements on the agricultural profession and testamentary agreements.
There are four sects in Islam, and according to Hanafi scholars, agreements are divided into three types depending on whether they are Shari'ah or non-Shari'ah, that is, legal or illegal:
- the first is sahih, i.e. sound transactions. These include a legal agreement in which the terms, conditions and requirements of the agreement are fully met;
- the second, corrupt, i.e. semi-illegal transactions. These include incomplete legality agreements where the terms of the agreement are sound and the terms and conditions are not found;
- the third is false, that is, transactions that are completely illegal. These include invalid transactions that do not meet the requirements, conditions and requirements for the transaction to be sound, which are completely illegal [15. 149-b].
The other three, the scholars of the Shafi'i, Maliki, and Hanbali sects, have only two types of agreements, depending on whether they are Shari'ah or non-Shari'ah, that is, legal or illegal. These are authentic, that is, sound transactions, and corrupt or false, that is, illegal transactions. Like the Hanafi scholars, they did not classify illegitimate, that is, illegal, agreements as corrupt or false. They said, "These two words are synonymous and have the same meaning."
There are clauses and conditions set for each transaction to be sound and legal. The word Rukn is Arabic and refers to something that is part of the very essence, essence and truth of something, meaning "foundation", "base", "column". This means that if a corner exists, something will also exist. If something doesn't have a ruk, then that thing won't happen either. For example, the terms of a trade agreement include the seller, the buyer, the item sold, and the words "sold" and "received" by the parties. If these items are not available, the trade agreement will also not be available. In the eyes of the mujtahid scholars of the science of jurisprudence, the agreements and the conditions relating to the contractors consist of two parts. The first is the conditions imposed by the Shari'ah on the agreement. For example, the fact that the object of the transaction is clear, such as the conditions under which the goods must consist of goods permitted by Shari'ah. The second is the conditions imposed on the parties or one of them at the time of the transaction.
The most important elements of the agreements are "aqd" and "iyqo". A contract is a free agreement between two or more persons, either orally or in writing. Iyqo is a unilateral agreement at the request of one party. The will of other persons does not
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affect the structure of such agreements. Iyqa includes divorce, vows, and oaths [16. 219-
One of the equal conditions for the parties to the agreement is that they must be intelligent and of legal age, capable of dealing. Sheikh Muhammad Sadiq Muhammad Yusuf in his book Usul ul-Fiqh stated that in Islam, agreements should be made on the basis of mutual consent of the parties, the parties should be free to express their consent and wishes, and a coercive agreement is illegal [17. 275-b].
Therefore, during the negotiation process, it was investigated whether there were any charges related to agreeing to the transaction. Convictions related to consent are cases of coercion, coercion to conclude a transaction, when one of the parties uses a lie and deceives the other, and the person is in a situation where he cannot understand his actions.
Many sciences have explained the effect of coercion on the treaties by the mujtahid scholars of the four major sects, the inability of the individual to act. According to Hanafi scholars, transactions related to trade, rent, etc., which can be subsequently violated or canceled, are affected by the accusations of agreeing to enter into an agreement. For example, if a person is raped and enters into a sale or lease agreement without realizing the importance of his or her actions, he or she can later rescind that agreement. Because he made the deal by force or by not being able to control his actions. Therefore, when this threat is gone or the person regains consciousness, it becomes voluntary. He cancels the deal if he wants, and continues if he wants. This means that the charges of agreeing to a deal will have an effect.
In transactions that cannot be dissolved, such as marriage or divorce, coercion and the fact that the person does not understand his or her actions do not affect the agreement. In the other three sects, coercion has an effect on all agreements. That is, all transactions are said to be ignored unless there is a will and consent [15. 150-b]. The difference between trade agreements, lease agreements and marriage and divorce agreements is that in transactions such as trade, lease, the object of the agreement is the goods. Breaking such agreements does not directly affect a person's destiny, his or her personality and life. Therefore, immediately after concluding trade and lease agreements, it is possible to cancel it, break it, and not depend on anything else. In marriage and divorce agreements, the object of the agreement is not the property, but the person and his destiny. For example, when the parties mutually agree and a marriage contract is entered into, they become a couple. Be honest with each other. Now there is no way to break this marriage. Because he needs a divorce. It is also impossible to break the spleen, to stop it. Because if a able-bodied Muslim utters the word talaq towards his wife, it will happen. It is no longer possible to cancel it. Because it requires a new return or a new marriage.
b].
It is narrated on the authority of Abu Hurayra that the Prophet, may Allah bless him and grant him peace, said, "All divorces are permissible, except for those who are insane." Narrated by al-Tirmidhi and al-Bukhari. It is narrated from this hadith that a person who is innately esipast and cannot distinguish what he has done will not be divorced. However, if a person loses consciousness due to voluntary disposal, for example, if he loses consciousness due to intoxicants, his spleen will fall. The scholars have said, "If a person who is intoxicated with what is consumed for treatment and cannot remember what he did or said does not get a divorce, it will not be granted." In other cases, it falls. However, some scholars, including Imam Zufar, Imam Tahawi, and Imam Karkhi from the Hanafi fuqaha, said: "A drunken man who can't remember what he's said doesn't get divorced. Because such a person is a madman himself. For drunkenness, there is a separate punishment in the Shari'a. He will be flogged by the judge. " Also, a person who has lost his mind due to severe anger will not get divorced. This is an involuntary situation, and our citizens have said: 436-]. said [18. 436-]. said [18. 436-].
The lease agreement is based on the consent of both parties and the condition that the leased item be known to the extent that it prohibits the dispute [19. 187-b]. False trade cannot be trade even if it looks like trade from the outside, and it can never represent property. For example, the sale of a minor or a insane person, or the sale of meat and vodka-like items that are not considered property, is a false trade [19. 92-b].
Under Islamic law, a person is deemed to be able to behave after reaching the age of majority. In contrast to Roman and Anglo-Saxon law, in Islam, men are considered legal at the age of 15 and women at the age of 9-10 (in some tropical countries, girls reach puberty at this age). From the time of the Abbasid Caliphate, slaves began to be considered subjects of law. Those who were able to enter into various agreements with the permission of the master of the slaves had the right to choose for themselves a future bride, as well as the right to inherit [20].
In Islamic law, if a person entered into an agreement in a situation where he did not understand the significance of his actions or could not control them, he had to present to the judge the persons who actually witnessed the situation in order to annul the agreement [21. 253-b]. In this case, the judge had to substantiate the decision with neither internal confidence nor information known only to himself (except for the issue of denial of witnesses). The predominant, comprehensively arranged evidence was the testimony testimony, with the written testimony being secondary [22].
In Islamic law, if one of the parties to the trial is required to bring four witnesses to his testimony, the other party's oath of allegiance, even without any witnesses, will be taken into account. There were three types of evidence in court proceedings: confession, testimony, and oath.
The wills of minors and incapable persons are considered invalid. If this was done by them during childhood and incapacity, then they must affirm their will when they reach puberty and ability to behave, otherwise their will will be irrelevant [24].
Conclusion.By comparing the treaties in Roman law and Islamic law and finding them invalid, we came to the following conclusions:
First, In both Roman law and Islamic law, a person must be able to express his or her will and be able to act in order to enter into a contract.
Secondly, In Roman law, transactions are divided into 2 types according to their validity - real and invalid. Unreal transactions are themselves subdivided into nonexistent, absolutely unreal, and partially unreal transactions. In Islamic law, agreements are divided into authentic and invalid agreements (true or false). However, the scholars of each sect differed on this point. While the scholars of the Hanafi school of Islam considered the invalid agreements to be false and corrupt, the scholars of the other three schools - Shafi'i, Maliki and Hanbali - said that false and corrupt agreements mean the same thing.
Third, in both legal systems, bilateral agreements relating to property could be subsequently terminated if they were entered into as a result of defects in legal capacity. However, in Islamic law, vows, divorces, and swearing, which are unilateral agreements, have not been annulled, although they have been made due to a lack of legal capacity.
Fourth, In Roman law, even in people with bot (rheumatism) disease, their ability to behave was limited, while in Islamic law there was no such rule.
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