Investigating the Possibility of Stipulation of the Trustee's Liability in the Mudarabah Contract and Banking Profit and Loss Sharing Contracts from a Legal and Jurisprudential Perspective (Imamia and Sunni)

Q: How can I download an article?

To download an article from SID, first log in to the site, search for the article title, and click on the 'Download Article' option.

Q: How can I download an ISI article?

To download an ISI article on SID, enter the keyword or article title in the search bar, view the relevant results, click on the desired article, and select the 'Download Article' option.

Q: How can I access the SID database?

To access the SID database, visit SID.ir, create an account, and log in to access scientific resources.

Q: Is downloading articles from SID free?

Some articles on SID are available for free, while others require payment. Details are specified on the article's page.

Faqih Sediqe Sadat; Naseri Moghaddam Hossein; Abolhasani Ali Asghar

مرکز اطلاعات علمی Scientific Information Database (SID) - Trusted Source for Research and Academic Resources

Journal Paper

Paper Information

Journal: Fiqh va Usul Year:2020 | Volume:52 | Issue:2 (121 Page(s): 73-97

Download Full-Text

Persian Verion

View:

288

Download:

Cites:

Information Journal Paper

Title

Investigating the Possibility of Stipulation of the Trustee's Liability in the Mudarabah Contract and Banking Profit and Loss Sharing Contracts from a Legal and Jurisprudential Perspective (Imamia and Sunni)

Author(s)

Faqih Sediqe Sadat | Naseri Moghaddam Hossein | Abolhasani Ali Asghar | Issue Writer Certificate

Keywords

stipulation of trustee’s liabilityQ1

banking profit and loss sharing contractsQ1

Mudarabah contractQ2

article 558 of the Civil CodeQ1

Abstract

From the perspective of civil jurisprudence, the trustee is not liable for any damages unless in case of excessive use or failure of due care. However, a question arises whether a trustee may be liable, by inserting a condition, even in the absence of excessive use or failure of due care? This is a controversial precedented issue in the Islamic jurisprudence and the aspect which makes it up-to-date is its analysis in “ banking profit and loss sharing contracts including Mudarabah” . The vast majority of Shiite and Sunni jurists consider the stipulation of the trustee’ s liability in the form of a “ corollary condition” as “ null and void and invalidating” due to its being against the requirements of contract and its contradiction with the requirements of trust, ownership and representation of Mudarabah. The few jurists, under whose fatwa liability in the form of condition about performance is valid, consider this condition as a promise which merely creates a “ pure imperative rule” and is not capable of creating “ the positive rule of liability” . It appears that the evidence of those who consider this condition as valid are not convincing and the evidence of opponents such as the absoluteness of “ Sahiha of Mohammad ibn Ghais” which declares the stipulation of merchant’ s liability as the cause of the “ transformation of Mudaraba nature” into usurious loan, are preferable. Although the Iranian legislator has also accepted this opinion in article 558 of the Civil Code, article 12 of the Executive Directive of Usury-Free Banking Act passed in 1984, has permitted the trustee's liability which needs amendment. This research is based on a descriptive-analytical method and the use of documentary collection tools. The main approach of this paper is jurisprudential; however, given the need to analyze the relevant Iranian laws, the issue has been studied from a legal perspective as well.

Cites

No record.

References

No record.

Cite

APA: Copy

Faqih, Sediqe Sadat, Naseri Moghaddam, Hossein, & Abolhasani, Ali Asghar. (2020). Investigating the Possibility of Stipulation of the Trustee's Liability in the Mudarabah Contract and Banking Profit and Loss Sharing Contracts from a Legal and Jurisprudential Perspective (Imamia and Sunni). QURANIC & HADITH STUDIES, 52(2 (121 ), 73-97. SID. https://sid.ir/paper/403108/en

Vancouver: Copy

Faqih Sediqe Sadat, Naseri Moghaddam Hossein, Abolhasani Ali Asghar. Investigating the Possibility of Stipulation of the Trustee's Liability in the Mudarabah Contract and Banking Profit and Loss Sharing Contracts from a Legal and Jurisprudential Perspective (Imamia and Sunni). QURANIC & HADITH STUDIES[Internet]. 2020;52(2 (121 ):73-97. Available from: https://sid.ir/paper/403108/en

IEEE: Copy

Sediqe Sadat Faqih, Hossein Naseri Moghaddam, and Ali Asghar Abolhasani, “Investigating the Possibility of Stipulation of the Trustee's Liability in the Mudarabah Contract and Banking Profit and Loss Sharing Contracts from a Legal and Jurisprudential Perspective (Imamia and Sunni),” QURANIC & HADITH STUDIES, vol. 52, no. 2 (121 , pp. 73–97, 2020, [Online]. Available: https://sid.ir/paper/403108/en

Related Journal Papers

No record.

Related Seminar Papers

No record.

Related Plans

No record.

Recommended Workshops