جستجوی مقالات مرتبط با کلیدواژه « بیع سلم » در نشریات گروه « فقه و حقوق »

Today, in many sale agreements, including a number of real estate purchases and sales, determining the amount of thaman (price) at the time of signing the agreement is either not possible or entails great risk. While many jurists have considered determining the amount of thaman at the time of signing the agreement as a condition for the validity of the sale agreement, and this condition has been specified in Article 338 of the Civil Code of Iran. The main question is whether the determination of the amount of thaman is an imperative rule and a condition for the validity of the sale, or is it enough for the validity of the agreement to provide a clear and indisputable process in the text of the agreement for determining the thaman in the future of the agreement? This study concerns the evidence of the necessity of determining the thaman – including the Prophet Muḥammad’s ḥadīth of the prohibition of the gharar (risk-taking) sale – demonstrate that not only is there no evidence for the first possibility, but a ṣaḥīḥ narration correctly indicates the second possibility. This study has dealt with analytical-critical data processing with the textual-revealed method.

According to Article 691 of the civil law, "dayn guarantees that have not yet been established are invalid." The jurists, following the jurists, tried to interpret them. Due to the establishment of dayn. they carefully tried to follow the word "cause" in addition to some jurists, in addition to its true meaning, that is, appropriate, so that the conventional tradition would be in accordance with the legal regulations. Although the existing custom and custom can be somewhat decisive, since this dispute is not resolved in jurisprudence and law, and the fegh is silent, according to Article 167 of the Constitution, the ruling must be determined on the basis of fegh standards. The results of the research, according to the rules and principles of legal jurisprudence, as well as the combination between the concept of M691 and M697, indicate that the guarantee of the future dayn of the researcher is considered correct and there is a balance between the guarantee of the future dayn and the actual existence.And insisting on the invalidation of the guarantee of the possible future dayn of the product, given that it has become a social necessity, causes the system to be disrupted.

Specific object and general object are the concepts widely used in contract law, which, according to Islamic jurisprudence (fiqh), can also be seen in the texts of case law. These two terms have philosophical and logical foundations that have been considered by their inventors. However, later it was neglected in the definitions of jurists and caused the misinterpretation of these two, and became the source of mixing of the types of objects, the effects of which are evident in various contracts, including the pre-sale of the building. Many believe that selling an unbuilt building through forward sale is considered void because it cannot be considered a general object. In the present study, while examining the logical and philosophical foundations of these two terms and the history of their origin and evolution in jurisprudence, it has been shown that the criterion for general and specific object in liability is not the actual multiplicity of external cases, but rather, the validity (in general objects) and invalidity (in specific objects) of multiple cases matter intellectually. In this way, the future building will be considered as a general object and there won't be any problem with the validity of its transfer through forward sale, in terms of the type of the sold object.

Estisna contract is made between a client and a manufacturer. It is conducted in this way that the client asks the manufacturer for a specific product. After that the manufacturer accepts the order and promises to prepare raw materials, manufacture the product, and deliver it at the due date. The client is also obliged to pay the agreed fee stated in the contract. There is disagreement about the nature and validity of this contract between jurists and legal experts. Some consider Estinsa contract as an independent sale contract, others as forward sale contract. Anyway this contract is considered to be a valid contract in Iranian law. Todays this contract can play a significant role in the Islamic banking system. Using the framework of this contract, banks can finance projects of the public and private sector. They make this contract in two ways: some times as an investor and a representative of the client who demands the product, and sometimes as an intermediate.

The civil law for the short sale of constructed edifices, which can be seen in light of support in favor of the advance purchaser, was passed by the Islamic Legislative Council of the Islamic Republic of Iran in the month of Day 1389 (A.H.) and subsequently gained the approval of the Guardian Council. From the very beginning the legal character of the legislation, especially with regard to its first constituent article, proved highly controversial. The present paper, aiming to clarify the legislative character of this law, scrutinizes these issues and in the course of disputing the necessity of the reception of the total amount due in concordant transaction, reaches the final conclusion that the law is harmonious and in accordance with such transaction, this being conditioned by the presupposition that the contract observe the first article of the legislative law and state in writing that the edifice under agreement be transferred into the possession of the purchaser either “from the beginning,” “during the course of construction” or “after the completion of the edifice.” In the first instance the transfer will be unconditionally complete; in the second instance the transfer will be in a state of conditional pending and in accordance with the number of installments; and in the final instance the transfer will be in a state of conditional pending completed after the payment of the final installment.

Today manufacturing contract has a special place in the big and small transaction. the subject of manufacturing contract is the made of goods that manufacturer has recommended to maker with determining of attributes and characterizes with preparation primary materials to make it in a specified time and shall delivered to manufacturer. Manufacturing contract in fourth school of religious jurisprudence is propounded in form of forward or unidentified sale and imamie Jurisprudence some precursor jurisprudence referred to it. Iranian civil law does not make any direct reference to manufacturing contract. those if we believed based on one of the definite contracts like sale or rent or reward or a combination of both should be derived from to it in terns of the current legal principles that contract. Otherwise we can rationalize the independence of the manufacturing contract based on the generalities of contracts the principle Of the freedom of contract and the common thought.

Nowadays, due to the growth of city-dwelling and apartment-dwelling resulted from many factors, presale contracts have become widely common among Iranians and mass constructors of buildings, big constructional companies, constructors of commercial services and residential complexes. And even administrative organizations try to collect the required capital for this profitable and lucrative economic activity before they start the construction. Jurists, lawyers and judges are supposed to justify and explain these kinds of contracts according to the current legal and Islamic jurisprudence constitutions to provide a proper and exact framework for arriving to a legal conclusion in disputes. This study explores the settlement and the presale and the reasons of adaptability and inadaptability of the above mentioned contracts

There are different ideas about the concept of "Kali- Be- Kali sale". Civil code is brief in this regard. The prevalent idea in Fiqh, regards this type of sale as an invalid contract; So civil Law hasn't accepted it. But the study of the different Fiqh texts and literature of this subject in Fiqh suggest that this opinion isn't   well established. Three main avidences (reasons) setforth to against this type of sale: the necessity of payment of price in meeting placc at forward sale (Baya- e-salam); ivalidity of Baya'- e- Dain -be-Dain (sale of debt to debt); the concensus of opinions.(Ejmaa')But none of these avidences. Can prove the invalidity of this sale. in this article, affort has been made to analyze and criticize the avoidances of prevalent idea and finally we conclude that in terms of Fiqh the "Kali- Be- kali sale" is valid and reliable, and it is too in I ranian Legale system.

Today “the sale of future goods” in the local and international business has been mostly common. In this type of sale, goods do not exist at the moment of concluding the agreement. Rather, they will happen in the future. In this article we will investigate the veracity of the sale of future goods in Iran and Islamic law. Besides, the different types of such sales as well as the process of the possession transaction will be discussed. The two main questions posed in this article are as follows: 1- Among different types of goods inserted in the provision 350 of the civil law which ones are the goods in the sale of future goods? 2- Considering the sale of future goods, when does the possession transaction happen?