Compensating for the Consequences of Refraining from Engagement in Islamic jurisprudence, Moroccan and Comparative Legislations
The topic of theis research deals with the engagement stage, as it is a precursor to marriage and a way to establish it properly, which ensures a good choice of spouses, and the achievement of compatibility and interdependence between them. If the engagement is merely a date for marriage and not for marriage, then each of the suitors has the right to withdraw from it, and the other party has no obligation to complete it in recognition of the principle of freedom of marriage. However, it may cause harm to the offender, the offender, who is not responsible for it, and the problem of compensation compensation will be raised, and the rule is that there is no harm, no harm, and the damage is removed. The Moroccan legislation in the family field has surpassed the solutions of the Family Code in the place of the Personal Status Code, the legislative void that most comparative legislation continues to live on on this subject, including Arab family legislation that considers Islamic jurisprudence as an original reference in its drafting. Also, the old Islamic jurisprudence did not deal with the issue with a legal ruling, because it established precise controls of the sermon with which it is impossible to harm one of the suitors, unlike the modern jurisprudence that dealt with the issue as emerging from the jurisdiction of juristic ijtihad, so jurisprudence was divided into three positions: a position that says compensation, and another position that says The lack thereof, and a third position that details in detail between the right to compensation for harm to justice and its absence, as it acknowledged compensation when conjugating the actions and behaviors that resulted in the damage, and not acknowledging compensation just for the sake of justice. It seems that this view is the right opinion adopted by both the French and Egyptian jurisprudence and judiciary in the absence of decisive legal texts on the subject, and in front of the multiple positions in adapting the sermon and determining its nature. As a contract that requires compensation within the framework of contractual responsibility, or not, compensation is established within the framework of tort liability, raising the conflict of interests to refrain from engagement, and the damages caused by the actions accompanying the amendment.
Al-Taleb, Dr. Idris
"Compensating for the Consequences of Refraining from Engagement in Islamic jurisprudence, Moroccan and Comparative Legislations,"
UAEU Law Journal: Vol. 2020:
81, Article 1.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2020/iss81/1