Absolute Guarantee Clause of the Tenant: A Jurisprudential Dispute Between Trust (Amanah) and Obligation (Ilzām)

Articles in Press

Document Type : Research (Fast Track Review)

Authors

1 PhD student in Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Studies, Ferdowsi University of Mashhad, Mashhad, Iran; Visiting Professor, Bozorgmehr Qaenat University.

2 PhD student in Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology and Islamic Studies, Ferdowsi University of Mashhad, Mashhad, Iran.

10.22034/jrj.2026.72821.3053

Abstract

The condition of absolute liability of the tenant, which entails the tenant's responsibility to pay the equivalent or the value of the leased property in the event of its destruction or defect, even without any transgression or negligence, is one of the most widely used and simultaneously contentious clauses in contemporary lease contracts. Its jurisprudential status remains a subject of serious disagreement among Imamiyyah jurists. This research aims to precisely delineate the concept of liability and its various scenarios, and to adjudicate between the views of proponent and opponent jurists. Employing a descriptive-analytical method and library-based investigation, this study analyzes the arguments of both groups in light of the governing rules on the matter, on the one hand, and the evidences supporting the non-liability of the trustee, on the other. The findings indicate that the condition of absolute liability does not contradict the intrinsic nature of the lease contract; however, in cases of destruction or defect without the tenant's fault (particularly where the damage results from the act of a third party or natural disasters), the arguments of the majority theory (mashhūr) on the invalidity of the condition are more robust, since the stipulation itself does not constitute a cause for establishing a new liability. Furthermore, an examination of legal scholars' perspectives reveals that invoking the principle of contractual freedom (Article 10 of the Civil Code) to affirm the validity of this condition faces limitations arising from the religious standards governing Iran's legal system. The conclusion is that, given the silence of Article 493 of the Civil Code, referring to the fatwa of the majority jurists in accordance with Article 167 of the Constitution offers an appropriate solution for resolving legal conflicts arising from this condition.

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Journal of Islamic Law and Jurisprudence

Articles in Press, Accepted Manuscript
Available Online from 01 August 2026

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