The Function of the Principle of Non-Enumerated Contracts in Emerging Agreements: A Comparative Study of Iranian Law, Afghan Law, and Sunni Islamic Jurisprudence

Abstract

The principle of non-enumerated contracts constitutes one of the fundamental foundations of contract law in legal systems influenced by Islamic jurisprudence and plays a significant role in recognizing and legitimizing emerging contractual forms. This article adopts an analytical–comparative approach to examine the function of this principle in Iranian law, Afghan law, and Sunni Islamic jurisprudence, seeking to clarify its relationship with the principle of contractual freedom and contemporary socio-economic developments. In the first section, the concepts of enumerated and non-enumerated contracts and their jurisprudential foundations are analyzed, with emphasis on the general verses of the Holy Qur’an and jurisprudential maxims such as al-‘uqūd tābi‘ah lil-quṣūd (contracts follow intentions), aṣālat al-ibāḥah (presumption of permissibility), and al-mu’minūn ‘inda shurūṭihim (believers are bound by their conditions). Subsequently, the status of the principle of non-enumerated contracts in Iranian law is examined, focusing on Articles 10, 219, and 223 of the Iranian Civil Code and its role in recognizing modern and innominate contracts. The study then analyzes Afghan law from the perspective of the Afghan Civil Code and Hanafi jurisprudence, demonstrating that although this principle has not been explicitly codified, it has been implicitly accepted through general contractual rules and the principle of permissibility. The comparative findings indicate that the principle of non-enumerated contracts, while preserving the framework of public order and mandatory legal rules, serves as an effective mechanism for enhancing contractual flexibility, supporting economic innovation, and strengthening legal certainty in contemporary societies. The article concludes by emphasizing the necessity of reinforcing a substantive approach in judicial analysis of emerging contracts and expanding the jurisprudential and legal scholarship in this field.