Abstract:
Iranian jurists have considered the general sale on liability (Bay' al-Kulli fi al-Dhimmah) to be either a promissory contract or have interpreted its proprietary nature in a way that results in it being promissory; however, a promissory contract only occupies the obligation and not the liability (Dhimmah), and does not impose more responsibility on the seller. Such an obligation would not be tradable or transferable to others, and it would exclude general sales on liability and debt from the category of capital and property; whereas debt or an individual's credit in delivering instances of a general subject can be considered property, enter the cycle of trade, and provide the grounds for economic prosperity—a matter that has been accepted in the world's reputable stock exchanges and has promoted the circulation of wealth based on it. In this article, the opinion of jurists regarding the property-like and proprietary nature of general sales on liability and debt is strengthened, and with appropriate responses, the superiority of this view over the jurists' theory regarding the promissory nature of these contracts is preferred.
Machine summary:
Such an obligation would not be tradable or transferable to another, and general sales on liability and debt would exclude them from the category of capital and property; whereas the debt or credit of an individual, in the transformation of the instances of a general concept, can be considered property, enter the cycle of trade, and provide the causes for economic prosperity; a matter that is accepted in the world's reputable stock exchanges and, based on it, has promoted the circulation of wealth.
It seems that this latter condition—the existence of the mabi' (sold item) at the time of the contract—as derived from Article 361 of the Civil Code, pertains to the sale of a specific ayn, and cannot be considered as a basis for dividing contracts into transfer and obligatory; because the articles of the Iranian Civil Code do not state that the condition for a contract being a transfer contract is the external existence of the mabi', although this condition has also been accepted by some other legal scholars (Imami, 1368, Vol. 1, p.
As previously mentioned, in their view, 'ayn in the definition of sale does not mean a thing existing externally, but rather stands in contrast to usufruct (manfa'at) and right (haqq); however, jurists have also raised objections regarding a generic sale in debt, which are as follows: A) For a person to be able to transfer something to another, they must be the owner, and ownership is an accident (arad) and requires a locus (mahal) to exist; but in cases where the transaction is conducted regarding a generic item in debt, nothing exists, and ownership in relation to a non-existent thing has no meaning.
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