Uncertainty about the existencesubject of transaction in Islamic jurisprudence, Iranian and Egyptian law

Subject Areas : فصلنامه مطالعات میان رشته ای فقه

hamed salehi ali abadi ¹ , Alireza Shamshiri ² , Abbas Karimi ³

1 - Department of Private Law, Faculty of Law, Central Tehran Branch, Islamic Azad University
2 - Department of Private Law, Faculty of Law, Central Tehran Branch, Islamic Azad University
3 - Department of Private and Islamic Law, Faculty of Law and Political Sciences, University of Tehran

Received: 2023-10-25 Accepted : 2023-12-10 Published : 2024-03-20

Keywords: Uncertainty, Risk, custom, future property, sale of not available goods,

Abstract :

. Today, the traditional interpretations of Imamiyyah jurisprudence and related laws have led to the issuance of the well-known theory that the transaction is null and void for the same property that has not yet come into being, or the property of the future. The main document of this theory in Islamic jurisprudence is the rule of negation of uncertainty due to the uncertainty of the existence of the transaction and in the subject laws of our country, Article 361 of the Civil Code. On the other hand, an analysis of jurisprudential sources regarding the rule of uncertainty and all relevant regulations shows that any ignorance in a transaction in which there is a possibility of loss is not effective in voiding the contract, and therefore, transactional ambiguities can be divided into two effective and ineffective clauses in creating uncertainty and voiding the contract. and voiding the contract. and voiding the contract. Because in jurisprudence, uncertainty means danger, and danger is the possibility of harm that is avoided by the customs; Therefore, if the custom does not turn away from one of the aspects of the transaction due to the fact that ambiguity is negligible and does not consider it dangerous, such ignorance is not considered as a crime. This is while the analysis of the dimensions of ambiguity and doubt in the occurrence of the transaction in the transaction of money that has not yet occurred, shows that the risk caused by that ambiguity is not always effective in creating confusion, but in the case that the normal and normal course of affairs is a type of suspicion. to create a transaction in the future