Judicial and Legal Analysis of the Basis of "Gharar" in Insurance

Subject Areas : Private law

hamid masjedsaraei ¹ (دانشگاه سمنان)

Received: 2017-05-02 Accepted : 2017-05-02 Published : 2017-05-02

Keywords: Insurance, Moghabeneh, Insurer, insured, Inherent Gharar,

Abstract :

One of the new contracts in Iranian legal system is insurance contract that has encountered different opponents and adherents in its course of coming into existence and each parts, invoking to some reasons, have tried to justify and establish its viewpoint. The most important reason that the opponents of insurance contract have raised is that this contract is based on »Gharar«. They believe that the insurance contract is a sample of » Zamane- Ma- Lam- Yajeb and gambling. So they consider it as suspended and void contract. In this paper we have studied, through criticizing the opponents reasoning, the basis for legitimacy of this contract. It has to be noted that the mentioned »Gharar « in »Moghabeneh contracts« is a sort of accident and separation GHARAR and the prohibition of Gharar is related to »Moghabeneh contracts«.Thus to extend the Gharar to risk contract such as insurance is without any reason. IN this paper ,the opponents viewpoint has been rejected and resulted in that Gharar, in insurance contract, is a kind of »Inherent Gharar«that may not affect its validity.