Abstract:

This study adopts a comparative approach to analyze the relationship between the "principle of the non-restrictive nature of contracts" and "contractual freedom" in the two jurisprudential schools of Imamiyyah and Hanafi, and its reflection in the legal systems of Iran and Afghanistan. The primary objective of the research is to elucidate the capacities within these two jurisprudential traditions for accepting indefinite and emerging contracts, within the framework of adhering to imperative texts and public order.This research has been conducted using a descriptive-analytical method and through a comparative study of classical jurisprudential texts, civil codes, and legal literature of both countries. The findings indicate that in Iranian law, this capacity has been solidified through the explicit provision of Article 10 of the Civil Code, enabling the formulation of novel agreements, including electronic and smart contracts. In contrast, in Afghan law, despite the existing foundations of freedom of contract, the lack of clear legislative stipulation and complementary rules has made the practical application of new contracts more challenging.The originality of this article is manifested in establishing an explicit link between jurisprudential foundations and legislative solutions. Accordingly, for Iran, it is proposed to explicitly stipulate the rule of interpretation prioritizing the common intention of the parties and referring to specific custom in case of ambiguity, alongside recognizing electronic and smart contracts with clear evidentiary effects. For Afghanistan, the explicit incorporation of the principle of freedom of contract based on the model of Article 10 of the Iranian Civil Code and the recognition of these contracts while observing religious constraints is recommended.