العقود الصورية في منتجات البنوك الإسلامية : دراسة تحليلية نقدية

Abstract

This research aims to present a theoretical and foundational study for the issue of fictitiousness in the transactions of Islamic finance. In this regard, the study accurately formulates the concept of fictitiousness and its parameters along with proposing clear criteria that expose fictitious contracts and distinguish them from real ones. The theoretical study culminates in the analysis of several fictitious Islamic financial products offered by Islamic banks. The study starts by defining the concept of contract in Islamic jurisprudence, its pillars, conditions and types. This is followed by laying the foundations for the formulation of the concept of fictitiousness and the extent to which it is similar or dissimilar from usurious stratagems, which are related to the issues of pre-emptive sales, farcicality and ploys. Moreover, the study sheds light on the most prominent fictitious financial products that are formed from two or more contracts; along with highlighting some of the fictitious elements contained in such products and discussing them. The study also sheds light on the fact that greater weight is given to intention and meaning and not forms and words. The study also discusses some of the contracts and products that are offered by Islamic banks, which are based on the methodology of circumventing usury along with indicating some of the fictitious elements contained within them. The study relies on the analytical and critical methodologies by tracking the various fragments of the topic in all the books and studies related to it. The study reaches several conclusions; the first of which is that a fictitious contract can be described as an agreement between two contracting parties to form a contract in form and not substance in order to reach a certain aim either through a permissible or impermissible means. The study finds out that among the most important reasons for the emergence of the issue of fictitiousness in Islamic banks is circumvention of usury, lack of compliance of Islamic banks with the resolutions of Fiqh councils and Shari’ah boards, the rarity of experts in Islamic economy, and resorting to fictitiousness due to legal considerations.