Authors
1
Assistant Professor, Department of Jurisprudence and Private Law, Shahid Motahari University, Tehran, Iran.
2
PhD student in Jurisprudence and Private Law, Shahid Motahari University Tehran, Iran.
Abstract
Introduction and Objectives: The term "risk contract" is a general title that is placed alongside other legal entities. By recognizing the types of legal entities, a general classification of these legal entities can be presented. This division will help to further differentiate these entities and to understand them more precisely. Also, after stating this division, the position of the risk contract as an independent legal entity will be clarified. This division includes five general headings, which are mentioned below: the first type of legal entity is the acquisition of property in exchange for a consideration, such as sale and lease. This group, which is the most famous legal entity, is dedicated to contracts, and in addition to the acquisition of property, it also includes the acquisition of interests and claims, and has a special place in the legal system. The second type of legal entity is authorization, such as a power of attorney. This type - unlike the Tamlikāt (possessions), which was based on the transfer of ownership - was based on permission (the authority to dispose of the authorized person). The third type of legal superior entities is benevolences such as gifts (Hebeh) and endowments (waqf), which are in the form of contracts and agreements and are based on the motive of benevolence and charity. In this type, the legal act is usually performed free of charge and as a donation; the fourth case is obligations. Mūdāraba is an example of this type, because it is neither a contract of ownership, nor permission, nor a favor. The fifth legal category is risk contracts. Cases such as insurance and, in general, all speculative contracts such as a shepherd's contract for grazing livestock during certain seasons are considered to be in this category (Jafari Langrudi, 2003, pp. 199-201). In concluding these contracts, there is always a risk and danger for one or both parties to the contract; however, this risk is accepted by society and its business practices due to its normality. Therefore, some believe that this group includes contracts in which gharar is permitted within the limits of custom and are not subject to the prohibition of gharar in the Shari'ā (ibid., p. 201). Gharar literally means uncertainty, hazard, chance or risk. It is a negative element in mu'amalat fiqh (transactional Islamic jurisprudence), like riba (usury) and maysir (gambling). What is examined and explained in this study is this latter category.
After explaining the essence of a risk contract, examining whether the risk that exists in risk contracts falls under the heading of "gharar" prohibited in the famous hadith "The Prophet (PBUH) forbade the sale of gharar" is another important issue that will be addressed in this study. Contrariwise, some jurists and fuqahā have divided gharar into a new division into "intrinsic" and "incidental" and have considered only the existence of incidental gharar to be a cause of invalidity of the transaction. After explaining the risk in risk contracts and its relationship with the concept of gharar, the possibility or not of dividing the concept of gharar into intrinsic and incidental is examined, and finally it becomes clear that, assuming such a division is correct, which of these two types does a risk contract have semantic similarity?
Method: This research, using a descriptive-analytical method and a library study method and referring to important jurisprudential and legal sources, sought to clarify, first, what are the criteria for fulfilling a risk contract and whether the risk in it is conventional or unconventional? Secondly, on the assumption of the correctness of the division of gharar into intrinsic and incidental, which of these two types does the risk contract have a semantic similarity?
Results:
"Risk" means that two people take a risk in a big task - which is accompanied by an unavoidable risk and has unavoidable consequences; this is while some contemporary scholars have used it in the sense of conventional commercial risk - which is usually present in any contract. Therefore, it seems that using the term "risk contract" for contracts that have a conventional and reasonable risk is not appropriate; rather, it would be better if this term, like the term "risk", referred to contracts in which there is a significant risk of losing assets. This is confirmed by the use of the two words "gambling" and "risk" together in the words of some Fuqaha and the use of the word risk in the definition of gambling in the words of some other scholars.
Some contemporary scholars have divided "gharar" into intrinsic and incidental gharar, and they believe that intrinsic gharar means the conventional and reasonable commercial risk, or in other words, the same risk that does not invalidate the transaction. Whereas, incidental loss is a risk that is unusual and, due to the high probability of losing property, is subject to the prohibited loss in Sharia and is condemned to be invalid. In fact, the boundary between permissible risk in commercial transactions and forbidden risk in religious sources is the conventional or unconventional nature of the risk and the possibility of losing assets, respectively. But regardless of this criterion, it seems that dividing the term gharar into two terms: intrinsic gharar and incidental gharar is not an appropriate 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 in invalidating the contract. Therefore, it must be said that the title "gharar" is not fundamentally applicable to permissible risk, so that it can be considered a type of gharar.
3. The important point is that " gharar" is the significant risk that exists when trading against the loss of assets (for example, the trader does not know how much cryptocurrency he/she will receive in exchange for a certain amount of money). But uncertainty about the future price of goods has nothing to do with the issue of gharar. Accordingly, in the case of the emerging phenomenon of cryptocurrencies, transactions in the aforementioned currencies cannot be considered gharar (uncertain or risky), citing factors such as the existence of severe price fluctuations and the lack of clarity of the trading mechanism governing cryptocurrencies. It is worth noting that the fact that cryptocurrency transactions are not gharari and does not necessarily mean that they are legitimate, and there are other jurisprudential challenges in this regard that must be addressed separately.
Discussion and Conclusion: This study shows that using the title "risk contract" for contracts that have conventional and reasonable risk is not appropriate. Furthermore, dividing gharar into intrinsic and incidental is not considered an appropriate division, because by examining the term gharar in the sources, it is found that gharar has always had a negative connotation and has been a factor in invalidating the contract. Therefore, the term "gharar" is not fundamentally applicable to conventional and permissible risk, so that it can be considered a type of "gharar".
Keywords
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