Returning the Defect in Islamic Jurisprudence and Jordanian Civil Law: A Comparative Study

Abstract

      This study aims to clarify the rule regarding the decrease in value due to the fault in the price of the sale, the instances in which it is permissible to review, and when it is not. The study also discusses the conditions for reviewing when the contract cancellation is impossible, the extent to which the defective party can return, and how to calculate it. In addition, it compares the Jordanian civil law with other Arab laws influenced by it and following its path. The study relied on two methodologies: the deductive method and comparative method, reaching several results and some recommendations. The most important findings are that Jordanian law has several contradictions when regulating the rules of defect options. Accordingly, the study recommends the Jordanian legislator to resolve the contradiction between Article (198) and Paragraph 1 of Article (513) either by removing one of the two articles, with Article (198) being the most likely to be removed, or by limiting Article (198) by adding the phrase "in case of impossibility" of cancellation, to become: "In case of impossibility of canceling the contract due to a defect, the contract holder may retain the contracted item and return the decrease value". The Jordanian legislator is urged to remove the contradiction between Article (197) and Article (515) by doing away with Article (515) and relying solely on Article (197).