A discussion on the intellectual process forming the intention: a chief base for the legal capacitating in contracts with special reference to major judicial events

Abstract

The works attempts to rest on the significance of the intellectual process of the parties translating briefly into intention. Intention to that context is often expressed as a necessary element for the existence of an indenturitive bond in any legal system. The writer defines intention, based on his theory, as a mechanism that may be ascertained as a pre-contractual instrument that reflects preliminary agreements or understandings of one or more parties to a future contract. As a prerequisite such study needs to evolve around the intellectual process of the parties to reach at the stage of Intention, where is the resting point of study, making them able to legally enter into a contract/bond. The study enjoys comparative angles of intention with particularly focusing on; Islamic Legal System, Civil Law and Common Law. The analyze begins with early consensualistic tendencies of the eighteenth and nineteenth centuries, based on the “meeting of minds” provide as the start of the thesis doctrinal views. This, in the first “Preface” and then in “Introduction” chapters is discussed reviewing on eminent of pre-codification jurists such as Domat and Pothier and the draftsmen of Civil Code such as Portails. Then we read that it is the conjunction of “wills” of the parties and mutual “consent” that generates a contract. Adherents of this trend favoring the “declaration theory” leads the writer to reach his most crucial part of his thesis in chapter three where he anatomizes the intellectual process of a party on seven legally defined and psychologically distinctive stages. All the stages may and can have legal consequences should be taken into a motion in the progress of creation of a contract. As a believer in this theory the writer then assumes in effect that only the dispatch of the acceptance establishes the reality of the legal practice through defined mental stages of the contributors. As the final conclusion we understand that inner psychological elements, residing within the mind of a legal person, can never be known to anyone else except if they are legally exteriorized. A purely internal process of mind, related to a psychological element required for the formation of a contract under any legal system, is, first, beyond the reach of the law, but is a concern of the law. The writer, since briefly compares the standing of inner intellectual elements translated into intention and its applicability in contracts from the approach of major legal systems. He concludes this part, saying that the difference in approach is only a matter of emphasis, since, all legal systems have to work with exteriorized indications of inner cerebral elements in order to appraise and evaluate their legal effects.