A Judicial and Thematic Study on Shill Bidding (Najash) in Comparative Jurisprudence and Statute Law

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Sarkeshikian Zahra Sadat; Tabatabaei Lotfi Esmat Al Sadat; Asadi Kouhbad Hormoz

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Journal Paper

Paper Information

Journal: ISLAMIC JURISPRUDENCE RESAERCH Year:2022 | Volume:17 | Issue:4 Page(s): 1347-1375

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Title

A Judicial and Thematic Study on Shill Bidding (Najash) in Comparative Jurisprudence and Statute Law

Author(s)

Sarkeshikian Zahra Sadat | Tabatabaei Lotfi Esmat Al Sadat | Asadi Kouhbad Hormoz | Issue Writer Certificate

Keywords

Najash

Islamic jurisprudence

Dissimulation

Abstract

Shill bidding (Najash) is one of the wrong methods of advertising goods for sale. According to the view of the majority of Islamic jurists, najash occurs when a person, without buying intention, offers a high price for the goods offered, to encourage customers to buy it at a higher price. Some jurists have introduced a second type for najash: praising a product for what it lacks, without buying intention and in order to attract customers. According to these definitions, some kind of brokerages and auctions, and media advertising, in which the goods offered are generally regarded as the best goods, can be considered as examples of najash. There are disagreement on najash considering positive law and impeditive law as well as dealing options. Analyzing the arguments of the jurists, it can be concluded that najash is forbidden, but transaction is correct. Despite the opinion of most jurists, there is no option for the customer in the first type of najash and in the second type, the customer has a fraudulent option. The issue of najash has not been stipulated in the statute law. However, by reviewing articles related to the options of deception, deficiency and dissimulation, and also based on the recommendation of the authors of this article to limit the scope of Article 238 of the Civil Code to the meaning of the option of fraud, it can be concluded that the customer has no option in the first type of najash but he/she can use dissimulation option in second type of najash.

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