مجلة ريحان للنشر العلمي مجلة علمية، محكمة، شهرية، مفتوحة الوصول
– A study in the light of Maliki jurisprudence and the Family Code”
عديمو وناقصو الأهلية وتصرفاتهم
دراسة في ضوء الفقه المالكي ومدونة الأسرة
This research aims to control the difference between the incompetent and the incapacitated, and to find out their necessary or correct and unnecessary actions jurisprudence and law; This is because a person is supposed to have full capacity as long as the Sharia does not deprive him of his capacity or limit it. Chapter Three of the Law of Obligations and Contracts stated: {Every person is capable of obligation and obligation unless the law of his personal status states otherwise}, and what is meant by capacity in this regard The capacity to perform is only the one that is affected by the symptoms after human existence, and since it is based on the mind, symptoms may occur to the person that fully or partially affect his capacity, then exceptional provisions apply to him, and logic dictates that he who lacks discernment has his capacity incomplete, and he who lacks discernment loses his capacity. Accordingly, it is directed in this study to stand at these exceptional rulings in the light of the Maliki jurisprudence and the family code to show that lack of capacity or lack thereof does not entirely affect the invalidity of transactions and their consequences, just as the actions of the incapacitated and incompetent do not always lack the intervention of those in charge of them, as it may proceed From their actions, what does not depend on the authorization of their guardians or their response as is the original, and whether the matter is related to the jurisprudence of worship or the jurisprudence of transactions, and on the one hand, our discussion of these provisions and our answer to those problems is an attempt by us to fill the legislative gaps in this field by bringing the jurisprudential branches and mentioning the controlling references On the subject of a certain Maliki jurisprudence.
Keywords: Maliki Jurisprudence, Family Code, Lack of Competence, Incompetence, Behavior.
Yassine RABI, Research Professor at the Faculty of Sharia – University of Sidi Mohamed Ben Abdellah in Fes – Kingdom of MOROCCO
