The Principle of the Non-Enumerative Nature of Contracts with Reference to the Legal Systems of Iran, Afghanistan, and Sunni Jurisprudence

Abstract

The principle of the non-enumerative nature of contracts constitutes one of the fundamental issues in Islamic commercial jurisprudence and contract law, playing a decisive role in the acceptance or rejection of emerging contracts and in regulating contemporary economic relations. The central question in this context is whether the validity of contracts is confined exclusively to specific and explicitly prescribed legal or religious forms, or whether any rational and lawful agreement remains valid and binding so long as it does not contradict an explicit rule of Sharia or statutory law. This article adopts a descriptive–analytical approach using a comparative method to examine the principle of the non-enumerative nature of contracts within three jurisprudential and legal frameworks: the Iranian legal system, the Afghan legal system, and Sunni Islamic jurisprudence. The findings indicate that although certain views supporting the enumerative nature of contracts have existed within Islamic jurisprudence—particularly among some early jurists and specific schools such as the Zahiri tradition—the dominant position among Imami jurists and the majority of Sunni scholars affirms the non-enumerative nature of contracts. This position relies on general religious evidences, including the Qur’anic injunction “Fulfill the contracts,” traditions concerning the obligation to honor contractual stipulations, the principle of dominion over property (qa'idat al-taslit), and the presumption of permissibility in transactions, all of which support the validity of newly emerging contractual forms. In Iranian law, this principle is explicitly embodied in Article 10 of the Civil Code, which provides the legal foundation for recognizing unnamed contracts and contractual freedom. In contrast, although the Afghan legal system lacks an explicit statutory provision addressing this principle, an implicit acceptance may be inferred from the general rules governing contracts and from the system’s doctrinal influence by Hanafi jurisprudence. Ultimately, the article concludes that the principle of the non-enumerative nature of contracts—despite limitations imposed by public order and mandatory legal rules—plays a fundamental role in ensuring the dynamism of contract law, promoting contractual justice, and enabling legal systems to adapt to evolving economic and social needs.