مبدأ التوازن العقدي وأثره في التأجير التمويلي:دراسة مقارنة بين القانون المصري والشريعة

Abstract

This study provides a theoretical framework for the principle of contractual equilibrium, and analyses the concept of equilibrium in contracts according to Sharīah in comparison with Egyptian law. The principle of contractual equilibrium is realized at two levels; the first by making an absolute equality between the parties in the contracts. The second level is by implementing a balance between the obligations and rights of the parties according to their initial agreement. It is the duty of the court to decrease, to supplement or to modify the contract in case of significant imbalance. Likewise, the legislative body is to protect and provide the necessary precautions for the principal of contractual equilibrium. The Egyptian law and Sharīah share the same consideration in regard to excessive difference between the named price and equivalent price. This is the main measurement of imbalance in contracts. In this study, the researcher applied the principal of contractual equilibrium to investment leasing contract. A leasing company uses its superior position to impose arbitrary conditions, tighten the responsibilities of the client; in addition, it does not take its obligation as the owner of the leased asset. Furthermore, the leasing company stipulates hard penalty clause in the contract. As a result, this attitude of the lease contract turns into an interest-based loan in the practice of Egyptian banking system so it becomes a void contract. On the other hand, the contractual equilibrium is achieved in the application of the Islamic investment leasing; the agent does not bear any responsibility in case of default in the implementation of the agency contract unless negligence is proven. In addition, the lessor shall bear all the effects of ownership of the leased asset because of an emergency circumstance, the amounts paid by the tenant above the equivalent price shall be refunded accordingly. The application for investment is legitimate as practised by Islamic financial institutions.