Legitimacy or Illegitimacy of the Contract of Istisna according to Imami Jurists, Jurists of Four Sunni Schools, and Iranian Law

Contract of istisna' or order of manufacture is one of the contracts which, nowadays, because of numerous uses made of it in many societies, is very popular to fulfill personal and social needs. Today, many companies, institutes, and firms demand items which are not only absent in the market but also they should be tailored and manufactured from the beginning to the end according to the demanded features. In such cases, if the manufacturer does not receive and order of manufacture, it will not accept to do so. In the Article 98 of the Fifth Plan of Development of the Islamic Republic of Iran, the contract of istisna' was added to the contracts included in the Chapter Three of the usury free banking act. Thus, study of foundations of legitimacy of this contract is of paramount importance. In the present study, we are seeking to find replies for these questions: is the contract legitimate according to the earlier Imami jurists as well as earlier jurists of the four Sunni schools? Is there a theoretical agreement in this regard? What is the place of the contract of istisna' in Iranian Law? Results suggest that the contract of istisna' is legitimate; and arguments posed for its illegitimacy by Shaykh Tusi (reh) are disputable. Though arguments posed by Hanafi jurists for legitimacy of the contract of istisna' cannot be accepted, juridical principles and rules show that this contract is legitimate.