The General Theory of the Necessity of Contracts Being Conscionable in Islamic Jurisprudence: A Comparative Study of Foreign Legal Instruments and Unfair Terms

Articles in Press

Document Type : Original Article

Authors
Mohammad Amin Vahdani Nia 1
Mohammad Ali Ansari Poor 2
Sajjad Norouzi Moghaddam 3
1 Ph.D. Candidate of Private Law, Faculty of Humanities, Edalat University, Tehran, Iran. Supreme Court Judge.
2 Associate Prof. Department of Private and Islamic Law, Faculty of Law and Political Sciences, Tehran University, Tehran, Iran.
3 M.A. in Private Law, faculty of law, Shahid Beheshti university, Tehran, Iran.
10.30497/sj.2026.248112.1467
Abstract
1. Introduction and Objective

An unconscionable contract is an agreement that reasonable persons would not ordinarily conclude. The foundations of such transactions exist in Iranian law, and their clearest example in Islamic jurisprudence is “unreasonable contracts.” In common law systems, these agreements are discussed under the doctrines of unconscionable bargains and unfair contract terms. This study aims to identify the foundations and criteria for recognizing unconscionable transactions in Islamic jurisprudence, Iranian law, and Western legal systems.

2. Materials and Methods

This research adopts a descriptive–analytical approach based on library sources. It clarifies the concept of unconscionable transactions and distinguishes them from related legal institutions. It examines the historical background of the issue in Islamic jurisprudence and foreign legal systems and analyzes factors contributing to unconscionability through juristic opinions, legal scholarship, and judicial precedents.

3. Research Findings

Unconscionable agreements may arise in contracts or clauses. Irrational and improvident conduct constitutes a principal indicator of unconscionability. Contemporary jurists regard useless, impossible, uncertain, and disproportionate penalty clauses, as well as excessive dowries, as clear examples of such agreements. A common feature of Islamic jurisprudence, Iranian law, and Western legal systems is the emphasis on gross disparity in value and irrational conduct based on objective standards of reasonableness. In comparative law, final determination is generally left to judicial discretion, whereas Islamic jurisprudence applies objective and subjective criteria.

4. Conclusion

Reconsideration of Article 230 of the Iranian Civil Code and limitation of freedom of contract are necessary to achieve contractual justice and preserve public order.
Keywords
Unconscionable Contract
Unfair Term
Unreasonable Contract
Reasonable Purpose
Objective Standard
Subjective Standard
Research Letter of Social Jurisprudence (Interdisciplinary Researches in Jurisprudence/ Researches In Jurisprudence)

Articles in Press, Accepted Manuscript
Available Online from 30 May 2026

  • Receive Date 22 April 2025
  • Revise Date 29 May 2026
  • Accept Date 30 May 2026