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

The ominous phenomenon of poverty has always had destructive effects on society and is one of the major obstacles to the happiness of human societies. The Holy Quran has provided ways to solve this social scourge and has dealt with it with negative and positive methods. On the one hand, banning usury and prohibiting the reproduction of wealth, and on the other hand, by establishing important and influential social institutions, such as khums, zakat, loans, endowment, endowment, and advice to work and effort, in order to solve this scourge of burning women. has taken care Despite the fact that all Muslims agree on the sanctity of riba in Islam, there is no exact definition of riba among Muslims. In the past, the majority of Islamic scholars, like Christians, considered all kinds of interest on money as equivalent to usury, but today, most Islamic scholars consider riba not just any kind of interest, but equivalent to cruel interest. The subject of the research requires to be investigated at a deep level. therefore; The in-depth research plan of the subject has been investigated by means of a case study plan of library technology, due to the reference to the Holy Quran and authentic interpretations and documentary technology, and it has come to the conclusion that banning riba is one of the ways to deal with Poverty and support for the poor.

Usury is one of the basic challenges in economic jurisprudence, the solutions to escape from which have always been discussed and discussed under the title of usury. The purpose of this article is to investigate the avoidance of usury in the sale of a condition, emphasizing the opinion of Imam Khomeini.

This article is descriptive and analytical. Materials and data are also qualitative and data collection was used in collecting materials and data.

Ethical considerations:

 In this article, the originality of the texts, honesty and trustworthiness are respected.

In jurisprudence, conditional sale is accepted, and despite the conditions of its authenticity, which are the basic conditions of the authenticity of transactions, in this case, it can be used as a trick of usury.

Usury is one of the prohibitions that there is no difference among Islamic scholars regarding its sanctity. The permissibility of sharia tricks is approved by many jurists such as Mousavi Khansari, Bojunordi and Najafi, and some like Imam Khomeini reject the trick of usury. The imam's argument is that there is no strong document that proves the permissibility of usury, and if there was such a trick, the Prophet himself would certainly have proposed this trick. The tricks of riba, including conditional sale, if there is a serious and rational intention in the sale, are considered a type of Sharia trick that is not approved by Imam Khomeini.

In 1974, the Supreme Court of Iran brought foreign currency into the category of money and made the delay in its payment subject to the 12% rate of Damages for late payment stipulated in Article 719 of the Civil Procedure code approved in 1939. In this article, the mentioned Unification Judgment Decision has been analyzed in a descriptive and analytical way, and by examining the issue, it seems that, considering the difference between currency and money, the Supreme Court has taken a wrong path, because, currency is considered as the goods in domestic legal relations and it is exchanged for money. People's different goals in acquiring currency and its use are also different from using money. As a result, applying a fixed rate for late payment does not entail applying the same rate for currency. In the current situation, the legislator that it is confused the issue of Damages with reduction in the value of money, the Unification Judgment Decision has been criticized is invalid based on abrogation of article 719 and the non-provide its provisions in the new civil procedure code and especially because in the new code, the official inflation rate and price change index for The assessment of the responsibility for reduction in the value of money has been approved on the fact that it is only "calculable" in terms of money. This does not mean that no damages can be paid for the delay in the payment of the currency, but it seems like the Damages for late payment of money, the provision can be claimed by proving the legal conditions for claiming damages.

Tanzil" is the assignment of a long-term monetary credit before due date at a price lower than its nominal amount, the legitimacy of which is disputed in Imamiyyah and Ameh jurisprudence and the governing laws and regulations. Its origin is the difference in how to explain the legal nature of Tanzil. The almost all majority of Imami jurists have interpreted  the nature of Tanzil as the contract of sale, or in more precise terms, "the sale of debt", and considered Tanzil in the nature of a debt to be included in the sanctity of usury, and in the nature of a sale, it is outside the title of usury.In this essay, the legal nature of Tanzil and its examples in Islamic banking have been explained in a descriptive and analytical way by inferring from both  Imamiyyah and Ammeh jurisprudence opinions, andit has been concljded thatt sale of debt can be recognized as a suitable format for analyzing the nature of Tanzil of commercial documents in the Islamic banking system.

One of today's important needs that jurisprudence and legal rules must respond to is the demand for damages that, due to the delay or non-fulfillment of the obligation by the oblige, lead to the loss of the opportunity to gain benefits or the occurrence of possible future losses for the obligee. Undertakes In the past, many jurists were of the opinion that only certain losses can be claimed, and because the opportunity to gain benefits or avoid future losses has not reached the certainty stage, the losses resulting from such cases cannot be claimed. does not have However, the investigations carried out in the works of jurists show that nowadays there is a consensus on the ability to claim and compensate for the loss of opportunity. Based on this, this article has tried to prove with a descriptive and analytical method that not only due to several jurisprudential rules such as "harmless" and "waste", the loss caused by the loss of the opportunity to delay the payment of monetary obligations can be claimed, but the approach of the year The recent decisions of the Supreme Court of the country and the generality and legal principles governing civil liability, including the principle of full compensation for damages, also indicate this.t can also be concluded from the legal principles and provisions of the mentioned unanimity votes that, contrary to the current opinion, the damages for the delay in payment of cash are allocated to the same item specified in Article 522 of the Civil Procedure Law and it does not have a determining index and it seems that the legislator in the said article merely The minimum damages are predicted and the oblige has the possibility to demand all customary damages. The doubt that may be raised regarding the possibility of claiming damages for the delay in payment due to the loss of opportunity and the ability to collect it with the damage caused by inflation is that by accepting this point of view, the situation of the injured party will be better than before the loss, which should be said to dispel this doubt. According to the accepted way of compensation, usually the amount of compensation is not equivalent to the amount of actual damages caused to the victim and depends on the amount of lost luck and opportunity, although in the evaluation of the amount of damage, the future benefit and the degree of its probability are taken into consideration.

The economy section of the constitution of Islamic Republic of Iran requires that the system of banking, as the heart of economy of the country, be changed.  Therefore, the law of "interest-free banking operation" was passed in 1983 and as for the law it gained a new form by mobilizing and allocating resources. It is hoped that establishment of a correct banking and monetary system can cause proper economy growth, removal of poverty and unemployment, curbing inflation, booming capital market, and decreasing money market. And it can show a successful pattern of interest-free economy measures in the modern world. A less complicated evaluation of the performance of the banking system indicates that unfortunately it could not practically achieve the expected aims stipulated in the law. What is the problem? Whether the executive regulations are not in harmony with the law, or the sample contracts based on regulations are not in agreement with the law or other laws are not in harmony with this law. After good studies and researches, a complementary plan is proposed by the honorable representatives of the tenth Islamic Parliament to replace it. Can this plan remove its possible shortcomings and complete its advantages? The considered supervisory authority can resolve problems. The Present article discusses the above-mentioned matters. In addition, this issue has been delayed for a while. Now that the plan is to be passed, it sounds that a number of shortcomings are removed and by the prevision of the supervisory authority and the new capabilities, the problem is removed which will be discussed in another time.

The Iranian State Monetary and Banking Act of 1972 has adapted progressive laws of European countries in the structures and organs of the Iranian Central Bank. In its other part, this Act has dealt with banking operations, the procedure for establishment of private banks and the criteria for their operations, similar to the banks in European countries and the United States. Nevertheless, the Parliament draft bill on the Banking of the Islamic Republic of Iran was put on the agenda of the public session of the Parliament in August 2022 and approved some of its confusing articles with the extreme limitations of broadcast of the debates by the Voice and Vision of the Islamic Republic of Iran, the state radio and television. Those who are handling the draft bill and have no legal expertise and are in fact after abrogation of the State Monetary and Banking Act.The legal interest and its rate which have been adopted in valuable legislations during the modern period of the Iranian judiciary have distinguished the legal concept of interest from “usury.” Towards the international banking system, Iranian banks have also been able to perform their duties in accepting deposits of the people and payment of bank loans. The so-called, “Free Usuary Banking Operations Act,” passed in 1983, with reactionary attitudes and ignoring the separation of the legal concept of “interest” from “usury” and the legislative achievements of Iran after the Constitutional Revolution of 1907, brought to disarray the provisions of the banking part of the State Monetary and Banking Act. The superficial and impractical provisions of the 1983 Act broke down the demarcations of the specialized banking operations, which paved the way for the wide scope violations of Article 34 of the State Monetary and Banking Act, barring the banks to enter into real estate transactions, purchase of shares in commercial companies and engage in entrepreneurial activities. The banks and non-banking credit institutions having entered into real estate and tower building business, the living environment of the big cities has been destroyed and the capital of the banks has become inaccessible for production and creating employment.For the protection of the rights of the people and security of their deposits, banks in all countries operate under constant supervision so that they would not exceed from the scope of their specialized functions and duly comply with the standards. However, the proposed draft bill, put on the agenda of the Parliament last August, wants to legalize the operations of non-banking credit institutions and allow them to enter into the scope of activities of the banks. For years, this kind of institutions has imposed heavy losses on their depositors and the former president of the country in response to their protests has unduly paid huge amounts of money from the national capitals for compensation of the losses of the depositors of such institutions, which itself is an illegal appropriation of state properties and amenable to prosecution.Finally, the sponsors of this draft bill are pursuing to extend the disarrayed provisions of the Free Usury Banking Operations Act to the jurisdictions of the Iranian Central Bank and thereby also bring to disarray the valuable provisions of the State Monetary and Banking Act on the part concerning the Central Bank. For this reason, five former governors-general of the Central Bank, being concerned about it, have requested that the proposed draft bill on Banking of the Islamic Republic of Iran be excluded from the agenda of the Parliament. I also have dealt with some of the principal criticisms of the draft bill in this Article and have proposed that the draft bill be excluded from the agenda of the Parliament. If there is a will in the government and the Parliament for updating the State Monetary and Banking Act, they must benefit from the assistance of legal scholars, law schools, those involved in the organs of the State banking system and the modern and progressive monetary and banking laws of other countries such as that of France.

In the modern financial system, it is accepted that banks operate for profit and interest, and the traditional view that banks are only money trustees is rejected today. Therefore, the issue of bank interest is always considered as a means of earning. Income is considered for banks. Although in Islamic banking, interest is considered usury and its receipt is prohibited. Based on this, in this research, we are looking to investigate what is the position of interest and especially compound interest in Iran's banking system and international documents, and do the laws emphasize its validity?

This article is written in analytical-descriptive method.

In Article 713 of the Code of Civil Procedure approved in 1939, the lawmaker had explicitly prohibited the claim for damages, and on this basis, during the rule of the said law, the claim for damages for delay in payment or the claim for damages for damages was permissible beyond the uniformity of procedure No. 1458 dated 1327 15/9/2015, apart from damages for delay and litigation damages, the Supreme Court excluded all damages from the scope of Article 713 of the aforementioned law. However, in the Civil Procedure Law approved in 2000, there is no rule prohibiting damages from damages, but the legislator established a new one as described in Note 2.

Money creation (money issuance) is one of the most important economic phenomena that leaves many effects on the economy. In order to grant loans to bank customers, money or credit based on which banks create credit from “nothing” in the account of the loan applicant is created. Although this phenomenon has also supporters, but this same group also admits and acknowledges the destructive economic effects of money creation. Its most important effects include economic instability, unbridled inflation, discrimination and violation of justice. This issue can be considered as a matter of concern affecting the Islamic society because there are few people who have not applied for a loan from banks. This phenomenon from a jurisprudential point of view can be considered as an unlawful ownership (in Arabic: اکل المال بالباطل, unjust enrichment); because, the bank acquires property (tries to make money) instead of “nothing”. On the other hand, the prohibition of the abuse of the right, which is based on the evidence of the rule of prohibition of detriment (in Arabic: لا ضرر, principle of harm), implies the prohibition of the creation of money. Banks have the right to loan their customers money and this right is considered by law and Sharia (Arabic: شریعه, Romanized: sharīʿa, religious law) for them, but they have made this right an excuse for their profiteering (mercantilism, trade) and causing harm (damnification) to the whole society, which is ruled to illegitimacy on the basis of the evidence of prohibiting the abuse of the right and principle of harm. It should be finally noted that the criterion stated in some ḥadīth (pl. aḥādīth, literally means talk or discourse, narrations) for the unlawfulness of usury, which is the earning of profit without anything in return (equivalent), is equally true about the creation of money, and it is possible to generalize the prohibition of usury by conclusive rectification of the effective cause (Arabic: تنقیح المناط).

One of the challenges facing the current Islamic societies in the field of economy is the issue of usury in loans. The principle of illegitimacy of usury is a consensus among all Muslims and even it is considered to be one of the necessities of the religion. Invoking the verses and narratives relating to the prohibition of the usury, the most well-known Islamic jurists have regarded usury as absolutely forbidden. They did not elaborate on its types, however, since about a century ago, referring to some evidences, a group of Muslim thinkers have divided usury into two types namely the usury in consumption and usury in production and have declared the usury in consumption as forbidden and the usury in production as permissible. Accordingly, if the usury in loan is for production, trade and the like, is permissible and not forbidden. The findings of the research demonstrate that the reasons for prohibiting usury include both types of the usury in loan and the claim that usury is permissible in the productive usury is invalid.

Validity of penalty clause in monetary obligations has always been a controversial issue in the Iranian legal system. Due to the exposure of institutions such as the Constitutional Council and the Expediency Discernment Council to the damage of late payment, despite the adoption of laws such as the Code of Civil Procedure this question still remains in the Iranian legal system and it is asked the parties can claim a sum in excess of the annual rate of the Central Bank as a fixed sum, based on the contractual terms? General Assembly of the Supreme Court's Unified Judicial Precedent No. 805 has considered the permission of this matter subject to its non-contradiction with the imperative laws and regulations and the present study with an analytical-descriptive method in order to answer above question, by examining evolutions regarding the damages of late payment in the Iranian legal system, state three jurisprudential, legal and economic analyzes and it has proved that accepting the validity of any amount of contractual obligation in monetary obligations can't be deduced not only from the text of the relevant laws and regulations but in addition to conflict with the law, has many adverse economic effects and exposes the agreement to the suspicion of usury.

Over the past years, one of the most important topics in society today has been the issue of usury. Despite the religious emphasis on its prohibition, it is unfortunately increasing in our current society and people often refer to similar actions of banks in justifying their actions. Knowing how banks act in order to adopt the necessary policy to control it is important. The issue of usury is has been denounced based on religious practice, and since Muslim countries, including Egypt, like Iran, are trying to carry out religious orders, it is important to know how their banks deal with usury and how it complies with the measures taken. Iranian banks in this field can be an effective step towards the realization of Islamic economics, so in this article, using a comparative and analytical method, we have tried to study usury in Iranian and Egyptian banks so that we can determine its presence or absence in banks. It seems that there is no usury in Iran legally, but in practice, it is done in banks in a way that is not free from religious forms, and in Egypt, due to the way it is criminalized, usury is legal from what is seen in jurisprudence. Known as usury has taken a toll.

Usury is one of the most important issues that has plagued various human societies since ancient times and has always caused significant economic and social harm to members of society. Accordingly, in the religion of Islam, many texts have ruled that usury is forbidden. However, some Muslim jurists and thinkers have included a chapter in their works entitled "The Trick of Usury" in which they have introduced methods through which transactions are made that appear to be similar to non-usury transactions. They have usury and accordingly, they are not subject to the ruling on the sanctity of usury. The most important question in this regard is the ruling on using the trick of usury. There has been disagreement among jurists about the ruling on methods of escaping the usury deal, and some, citing the conflict between the use of these methods and the philosophy of the sanctity of usury, believe that this action is illegitimate, and on the other hand, some claim based on the content of certain narrations. They have said that cheating usury is out of the sanctity of usury specifically or professionally. According to research, not only is the use of usury tricks free of problems, but also the sale of object can be used as a way to avoid committing usury transactions.

Loan taking and giving is one of the inescapable affairs of the society and a probable matter for everyone. Nowadays, many loan contracts of banks, financial institutions, family funds, and etc. are depends on opening of an account and the remaining of some money for a period of time which let the bank or fund to give a loan to depositor after passing some time. The question is that: such condition which provides benefits for loaner, a benefit that will be usury and forbidden, is permissive? This paper, through a fundamental study with the library research method by referring to various Quranic, hadith, and jurisprudential sources, considering the extreme evil effects of usury, different kinds of condition in the loan contract (especially loan on condition of return loaning), have been examined with a descriptive and analytical approach. After affirming that any benefit providing for loaner in contract make that loan contract usury, a careful jurisprudence study have been prepared to show the legitimacy or illegitimacy of such condition.

The binding precedent No. 794-99 handed down by the Supreme Court indicates that taking more than legal regulations by the bank as a condition contrary to public policy is not acceptable even in the form of Article 10 of the Civil Code.What is inferred from this decision is that the contract remains in force but the condition of charging extra interest is invalid.In this case, is it possible to conclude that on the assumption that the mortgage in question remains in force the rest of the effects of the contract, i.e. the issued writ of execution, the holding of an auction and the sale of collateral property is considered to be valid. Or is it the case that the above-mentioned condition annuls the writ of execution, and invalidate holding an auction in case it has taken place, and even the transference of the collateral property to the winner of the auction?This article pursues the examination of this issue by looking at some decisions issued.

Compensation for delay in payment is one of the issues that have been raised in the field of jurisprudence and law and in terms of the emergence of many changes, has taken positions from the jurisprudential and legal authorities. On the one hand, it is very difficult to maintain economic order in the current world, regardless of the penalty for delay, and on the other hand, the suspicion that the legal institution is illegal and the need to comply with the rules of law according to the fourth principle of the Constitution of the Islamic Republic Iran demands more and more exploration around this issue. After the revolution, the jurists of the Guardian Council, according to the fourth principle of the constitution, declared that their duty to implement the laws in accordance with Anwar Sharia was illegal and haram, but later due to increasing liquidity and rising inflation. The Guardian Council was forced to reconsider and accept the compensation for the delay, but doubts remained. To seek a solution in the Shari'a, and by determining the damages on the delay of payment, to establish a lever for the fulfillment of the obligation on time.

Doubtless, revival and implementation of two significant and recommended principles of Islamic religion, namely “do the good” and “forbid the evil” in all areas and facets of life, especially in economy, are highly effective in this process. In Islamic economic system, the motivation of economic affairs is the God’s pleasure and the goal; economic health of the individual, the family, and community are on the way to realize social justice and real installments. In this study, all the articles published in Persian until the autumn 2022 were examined based on do and don’t economic instances in the Quran and hadiths. These articles were searched through databases, Research Institute of Islamic Sciences and Culture, Astan Qods Razavi Research Foundation, sid.ir, Islamic Jurisprudence Quarterly and Civilica publications, Private Law Research Quarterly, and have been obtained by using some keywords such as do and don’t economic affairs, quint, religious tax, usury, and fraud in the transaction that have further been extracted from the above-mentioned articles and websites from reputable scientific journals. In Islamic economic system, the good economic affairs have been established to raise the welfare level of the needy, economic balance, and establish social justice. From the Islamic jurisprudence viewpoint, the position of financial resources for economic, social, and political growth and progress is a prominent and decisive position; just as development is a fundamental position. However, each of these two sources of worship and economy has their own places in Islamic society, and based on expediency and benefits, they are obligatory in some cases and recommended in others. If this category is properly institutionalized in society and the public observe its effects and achievements, they will doubtless turn to the good economic ones in jurisprudence.

Sharia solution means a solution that, according to general rules the parties of contract are allowed to use it. But, as the parties’ purpose is to abscond from religious sharia and legal prohibitions and restrictions, there is some disagreements about its validity in Fiqh. Some faqis believe on using it. The principle of correctness is also invoked to prove this belief. In contrast, some believe that Sharia solution is invalid. The most significant reason for those who believe in its invalidity, is the obscenity of lawgiver's purpose violation.The purpose of lawgiver in banning usury is oppression or other kinds of corruption in it. By changing the title and at the same time allowing such corruption, the purpose would be violated. Therefore, the purpose is violated which is reprehensible and in fact, the lawgiver is not allowed to commit it. Also in legal system, similar contrasts are visible. The same approach could not be inferred from civil act. However, it seems that the issue should be solved regarding to general principles. In this article, an adopted approach is emphasized on real intention for creating contract. As a result, it should be considered that in spite of applying Sharia solution whether the two contracting parties have a serious intention to deal or not. The negative answer to this question, means nothing but contract's invalidity. In this article, by introducing a case study, apart from the theoretical discussion in this regard, an attempt is made to imagine a judicial procedure approach

Prohibition of usury is well-established according to Imamiyah jurists and it is considered to be disapproved by reason. Disapproval by reason of usury requires that the rule on the prohibition of usury except for those case excluded by definitive reason be non-specifiable and usury be disapproved and forbidden under any circumstances. In spite of religious prohibition and by rational disapproval and social depravities of usury, some jurists have introduced certain ways for escaping from usury and have ruled for its legitimacy. In this regard, Imam Khomeini is among few jurists who through considering and reviewing the question, have ruled for its prohibition in all cases in which the nature of usury is secured and has neglected all ways and excuses for escaping from usury. By examining the implication of the narrations, he has considered them to be for peremptory usury (and not for real usury). Accordingly, the ways for escaping from usury cannot be applied as a general rule for specifying the prohibition of usury.

Process of establishment of contracts and their foundations, should be proportionate to the evolution of the economy. Contract is an obligation and should be with highest efficiency, benefit and satisfaction. Each of these things has many levels and in every age finds its own meaning. Foundations of contracts, such as validity, satisfaction, no loss and no legally foolishness, are relative and contain numerous degrees. A contract may be efficient, accurate and effective at a time and be void in other times. One person also may be legally foolish in one contract but grown in other. This paper reveals that each meaning must be consistent with the same period of time. This paper is an analytical text and its Hypothesizes that for any foundations should refer to specialist practice and normal practice would induce to static and unchanging.