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الخيارات في الفقه الاسلامي : دراسة في الادلة والتطبيقات == Alternatives In Islamic Jurisprudence A Study In Evidence And Applications
Author name:
عمار محمد حسين محمد علي
Supervisor name:
صاحب محمد حسين راضي نصار
General topic:
Islamic Sciences
Specific topic:
Islamic Sciences
Degree:
Doctorate
University:
University of Kufa - Faculty Of Jurisprudence - Department Of Quran And Hadith Sciences
Language:
Arabic
University location:
Najaf
First pages:
00T1445 - p.pdf
Abstract:
The following are a number of the cognitive results reached through the research : 1 - Since the subject of alternatives is obligatory contracts, the research has tackled the contract in its both types, the general and the specific which is the connection of two wills and their conformation to device a legal obligation.2 - The alternative in its linguistic sense is the choice, preference, rejection and authorization between two matters or more. Terminologically, it is the legally created right by the legislator or one of the contracting parties or both, by which the contractor has the right to repeal the contract or sign it.3 - There are several utterances related to the alternative like repealing the contract either by one of the contractors or both or for legal reasons the contract would be repealed.4 - Some of the alternatives are fixed whether it was chosen or not in some cases rather than the others, the same for their evidence.5 - If there is a flaw that has never been mentioned before, the contractor has the right to repeal the contract. This is proved by evidence from the Quran and the prophetic tradition.6 - The condition of flaw can be true for the seller to and follows the same rules which cannot be valid unless several conditions are met.7 - In case the deceit in the contract was proven, the contractor has the right to demand refund in case it was impossible to return the commodity, otherwise he has the right either to return the commodity or demand refund to decrease the damage.8 - If the product is sold for much more than its value, the buyer has the right to return the product. This is proved by evidence from the Quran and the prophetic tradition.9 - The jurist did not agree on this right, some applied it to all types of transactions and other to the cases when the price is much higher than the value of the product, and this is valid when all the demanded conditions are met.10 - The jurists agreed on the right of testing the product and in case something was wrong with the product, the contractor has the right to repeal the contract, this also supported by several evidence and demands several conditions that should be met.11 - I mentioned all the alternatives devised by the jurists without mentioning the evidence of each one. The first alternative mentioned is the right to repeal the contract in case the both parties are still in the same venue of signing the contract.12 - Some of the jurists has agreed to the previous right supporting their opinion with several evidence and in analogy with the opinion of the prophets companions who supported this right, while others rejected it saying that the contract would be obligatory right after it is signed by the approval of both parties. 13 - This option is valid in all types of transactions and not in other domains as it lacks evidence for that like the contracts which implies the probability of repealing in its nature. This right is conditioned by several terms.14 - The alternative of conditioning is proved by different ways that one of the contractors can set a condition to have the right to repeal the contract within a certain duration and is permitted for both the seller or the buyer or a third person. Several evidence has been mentioned to support this right as well as the need by both parties to consult experts to prevent any harm
Summary:
00T1445 - A.pdf
References:
00T1445 - R.pdf
