Semantic analysis of "risk contract" and verification of the division of "Gharar" into intrinsic and transverse

Articles in Press

Authors

1 استادیار دانشگاه شهید مطهری(ره)

2 دانشجوی دکتری رشته فقه و حقوق خصوصی دانشگاه شهید مطهری(ره)

10.30471/iee.2024.10306.2433

Abstract

"Hazard contract" is a new term and a general title that has been used in the words of some scholars, but its position as an independent legal entity has not been clarified, although at first sight it can be considered a contract that is always concluded for at least one of the parties. The parties to the contract have the risk of making a transaction. On the other hand, some jurists and jurists have divided Gharar into "intrinsic" and "intrinsic" in a new division, and have considered only the existence of Gharar as the reason for the invalidity of the transaction. This research, with descriptive-analytical method, seeks to clarify, firstly, what are the criteria for realizing the risk contract and is the risk in it conventional or unconventional? Secondly, on the assumption of the correctness of the division of Gharar into intrinsic and transverse, which of these two types does the risk contract have the same meaning? This research shows that it is not appropriate to use the title "risk contract" for contracts that have conventional and reasonable risk. In addition, the division of Gharar into intrinsic and transverse is not considered a suitable division; Because by examining the term Gharar in the sources, it is found that Gharar has always had a negative meaning and has been a factor for annulment of the contract, therefore the title of Gharar is basically not applicable to conventional and permissible risk so that it can be considered as a type of Gharar.

Keywords

Journal of Economic Essays; an Islamic Approach

Articles in Press, Accepted Manuscript
Available Online from 06 November 2024

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