Legal positivism in explaining the combination of benefit and loss in Mudarabah contract

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Kazemi Mahmoud; Ansari CHeshmeh Fard Hasan

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Journal Paper

Paper Information

Journal: PRIVATE LAW Year:2023 | Volume:11 | Issue:42 Page(s): 77-108

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Information Journal Paper

Title

Legal positivism in explaining the combination of benefit and loss in Mudarabah contract

Author(s)

Kazemi Mahmoud | Ansari CHeshmeh Fard Hasan | Issue Writer Certificate

Keywords

Legal Positivism

necessity

Profit

loss

Mudarabah

Abstract

The nature of the Mudarabah contract requires acceptance of benefit and loss at the same time, which has always been the concern of law and economics. The difference of opinion in the application of the guarantee condition in this contract and the different understanding of jurisprudence and its application in the law have limited the space for the effectiveness of Mudarabah. It seems that this dispute can be resolved in the context of the modern legal system and with the presence of the school of positivism, which has an emerging role in the subject laws, along with the generality of Muslim jurisprudence. In fact, the result of the interaction of the two schools is the reason for the implicit establishment of sovereignty that positivism refers to in the heart of the laws. This research reveals that the meeting place and the creation of disagreement in the discussion of guarantee conditions in Mudarabah, in line with the rules of the school of positivism, can be resolved by maintaining the ideals of legal and jurisprudential justice and economic efficiency. Therefore, the application of the law in attaching a new contract to Mudarabah is not necessary, and it is possible to explain the investment with the condition that the investor does not guarantee the damage to the capital in the form of identifying a new contract.

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