Removing the Conflict between the Theory of Abuse and the Rule of Legal Permissibility Contradicts Liability: Arbitrary Transfer of Workers - A Model: A Comparative Study

Abstract

Objectives: This study aims to identify the points of conflict between the doctrine of abuse of rights and the principle that "legal permissibility negates liability," and how to reconcile the two. It applies this to the issue of the arbitrary transfer of an employee, by clarifying the criteria for abuse in Islamic jurisprudence and Jordanian civil law, pinpointing the area of conflict, and proposing ways to eliminate it by harmonizing the two concepts.

Methods: The study uses comparative and analytical deductive methods to explore the conflict between the doctrine of abuse of rights and the principle that "legal permissibility negates liability." It compares these concepts with provisions of the Jordanian Civil Code and analyzes juristic texts to derive legal and Sharia-based rulings on the arbitrary transfer of employees.

Results: The results show that resolving the conflict between the doctrine of abuse of rights and the mentioned principle lies in restricting the principle by prohibiting serious harm to others, whether the act was carried out with the intent to harm or simply resulted in harm. Abuse of rights, in essence, represents a deviation from legal permissibility. Thus, legal permissibility becomes subject to the condition of non-abuse.

Conclusion: The Jordanian Labor Law should include a clear provision prohibiting abuse in employee transfers, granting judges the authority to award fair compensation in cases of arbitrary transfer, even if the contract grants the employer the right to transfer the employee.