Mecelle’nin "Şartla Bey’" Düzenlemeleri (M. 186-189) Karşısında İnfisahi Şartın "Hıyarat" Kurumu Üzerinden Değerlendirilmesi

In the systematic structure of Turkish obligations law, the validity and effects of contracts can

frequently be made subject to conditions, which are primarily divided into two basic categories:

suspensive (ta'liki) and resolutory (infisahi) conditions. When the systematic structure of the

Mecelle-i Ahkâm-ı Adliye, the codified version of Islamic property and obligations law, is

examined, it is seen that the concept of condition is divided into two as "ta'liki" and "takyidi"

in accordance with classical fiqh doctrine. Indeed, when the provisions on "conditional sale

(bey')" regulated between Articles 186 and 189 of the Mecelle and the main commentaries of

the period are examined, it is clearly emphasized that a suspensive condition is not valid in a

sales contract. At first glance, it seems that the Mecelle systematic does not include a

"resolutory condition" institution in the modern sense, giving the impression that the binding

nature of a contract cannot be directly tied to such a condition. The aim of this study is to

determine the legal and functional equivalent of the "resolutory condition" concept of our

modern law within the Mecelle systematic, which seemingly only includes suspensive and

restrictive conditions. Accordingly, the study is structured with a qualitative and comparative

method, centering on fundamental works such as Ali Haydar Efendi's "Dürerü'l-Hükkâm Şerhu

Mecelleti'l-Ahkâm" and Atıf Bey's "Mecelle-i Ahkâm-ı Adliye Şerhi". As a result of the

doctrinal examinations, it has been determined that the institution of "Hıyarat" (Options),

regulated between Articles 300 and 355 of the Mecelle, which eliminates the binding nature of

the sales contract and grants the parties termination authority, bears a great functional overlap

with the resolutory condition in modern obligations law. In particular, mechanisms such as the

option of condition (hıyar-ı şart) and the option of defect (hıyar-ı ayb) perform the functions of

a resolutory condition within the dogmatics of Islamic jurisprudence by granting one or both

parties the right to ratify or terminate the contract, with the ability to retroactively annul a

binding contract. Consequently, this institutional structure, which is natural and understandable

for fiqh scholars within their own terminology, can be perceived as a gap by today's jurists who

are unfamiliar with the language and conceptual systematic of the Mecelle. Through the

conceptual bridge established between the institutions of options and resolutory conditions with

this paper, it is aimed to correctly match the dogmatics of Ottoman-Islamic obligations law with

modern Turkish obligations law, presenting an illuminating perspective that will help today's

jurists grasp the essence of the issue.