قاعدة التبعية وأثرها في الاغتفار في المعاملات المالية المعاصرة : دراسة تأصيلية مقاصدية /إعداد مراد جبار سعيد

Abstract

This study deals with the rule of auxiliarity and its impact on forgiveness in contemporary financial transactions: A theoretical Maqasid-based study.The study indicates the importance of this legal maxim, distinguishing between what is included in the contract of sale by way of dependency and what is not included, the effects and injunctions that are a consequence of that and the prohibited elements that can be tolerated in its auxiliaries. This is all for the sake of realizing the objectives of contracts between contracting parties, especially the objective of financial security. The research introduces the Shari'ah parameters for tolerating riba and gharar based on the consideration that dependency is a major characteristic of this legal maxim and has a direct effect in tolerating gharar and riba in the auxiliaries of financial contracts, whereby if gharar and riba affected the essence of the contract, it will affect it and render it voidable. Whereas, if gharar and riba affected the auxiliaries of the contract only, they would be tolerated by applying the objectives of preventing hardship and bringing facility. The researcher used the inductive methodology by examining and surveying the available juristic texts. Moreover, the analytical methodology was also used in order to come up with contemporary applications related to the issues of maintenance of the contract and the sale of shares of shareholding companies. The research finds that gharar, which is present in the contract of maintenance is tolerated based on the maxim of dependency. This is because maintenance could be either an auxiliary that is part of the sale contract based on an undertaking given by the seller in the contract itself without being stipulated by the purchaser or stipulated by the purchaser, which would make it an auxiliary of the subject matter based on the implication of the contract. However, if the contract of maintenance were to be independent from the subject matter itself, then the gharar present in it would not be tolerated. The research also finds that the original ruling for the establishment of shareholding companies is permissibility and the validity of issuing shares of such companies and trading them, provided that Shari'ah parameters are fulfilled, such as that their core activities are permissible and in the absence of usurious financing and surplus. Moreover, their investment activities should be in permissible assets and usufructs using Shari'ah compliant contracts, such as mudarabah, ijarah, salam, istisna and other similar contracts and that their main purpose is not to deal with gharar or riba or trade with prohibited items. Furthermore, the study finds that it is prohibited to purchase shares of companies whose core activity is permissible but at the same time, deal with riba through lending and borrowing, which would make such companies fall under the category of mixed companies. This is because interest has become part of their income through the process of taking and giving interest.