Strategic Studies of Jurisprudence and Law

Strategic Studies of Jurisprudence and Law

Jurisprudential Examination of the Conclusion of the Contract of Istisna in the form of Ja'ala with the Approach of Criticizing the View of the Necessity of an Independent Contract

Document Type : research

Authors
mahdi mohamadzadeh 1
mohamadmahdi nabizadeh 2
1 Department of Islamic Education, Farhangian University, Tehran, Iran.
2 Assistant Professor, Department of Islamic Studies, Arak University of Medical Sciences, Arak, Iran.
10.22034/ejs.2024.442695.1695
Abstract
Background and Aims: To examine the jurisprudential nature of the Istisnaa contract, the purpose of this article is to know the jurisprudence of the Istisnaa contract and to express its similarities and differences with the Jaala contract and to criticize the view of introducing the Istisnaa contract as an independent contract.
Materials and Methods: The article is descriptive and analytical and the library method was used.
Ethical Considerations: In this article, the originality of the texts, honesty and trustworthiness are observed.
Findings: The construction order is one of the contracts that has a long history in dealings between people, and clarifying its nature from the point of view of jurisprudence and law will clarify the rest of the rulings that arise as a result of this issue. In the last few years, the Central Bank has considered this contract as a necessary contract and as a result issued the rules on necessary contracts here, while it seems that this view is not correct and there have been many criticisms on this point of view, and if this contract takes place in the form of Jaala Its purpose will be achieved, and the problems caused by the assumption that the contract is necessary will not occur.
Conclusion: Examining the pillars of Istisnaa contract such as demand and acceptance, the clarity of the characteristics of the thing that is going to be built, the builder and the customer clearly show that the title of a permissible contract, such as Jaala, can be better applied to them.
Keywords
Istisnaa
necessary contract
Istisnaa contract
Jaala
Subjects
Strategic Studies of Jurisprudence and Law
Volume 5, special issue - Serial Number 5
Studies of economic jurisprudence
Summer 2023
Pages 1171-1186