چکیده:
A group of Imami jurists, based on the well-known definition in which selling (bay‘) is defined as “ownership of a definite object instead of a definite alternative”, have opposed the purchase and sale of “financial rights” due to its non-objectivity. Among Sunni jurists, Hanafis have also considered the sale of rights as a problem due to its lack of financial value; while the scholars of Maliki, Shafi‘i and Hanbali jurisprudence believe in the validity of the sale of intangible property, such as interests and rights. In addition, some other Imami jurists have confirmed consideration of financial rights as the price of a sale; they perceived the selling of such rights as a price within the concept of sale. This research, which has been conducted through an analytical-descriptive and comparative method, aims at investigating the possibility or impossibility of selling financial rights in the jurisprudence of Islamic schools of thought. Since there is no certain definition of “sale” (bay‘) or “property” (mal) in the Islamic Shariah, and the explanation of the meaning and nature of the two has been left to custom, it is necessary to analyze the nature of sale and property with the presence of modern custom and re-examination of the proponents and opponents’ arguments on the sale of financial rights. The findings of the research, after reviewing the jurisprudential principles on the sale of financial rights indicate that the theory correctness of selling such properties is valid.
خلاصه ماشینی:
(Research Article) Re-examining the Jurisprudential Foundations of the Sale of Financial Rights in the Jurisprudence of Islamic Schools of Thought Majid Vaziri,1 Mortaza Yosefi 2 (Received date: 2018/10/09, Accepted date: 2020/05/31) Abstract A group of Imami jurists, based on the famous definition in which sale (bay') is defined as "the transfer of ownership of a physical asset (ayn) in exchange for a known consideration," have opposed the buying and selling of "financial rights" due to their lack of being physical assets (ayn).
In contrast, there are the majority of Sunni jurists who have not mentioned the condition of the subject matter or price being an "ayn"; however, from the perspective of the Hanafis, benefits and rights do not have property status (maliyyah); because they are incorporeal and their possession is inherently impossible, and therefore, from their point of view, the sale of rights is not permissible because they are not considered instances of property, even if they have a financial aspect.
On the other hand, in view of the fact that in the Book and the Sunnah, the concept of sale as well as property has not been specified, and considering the customary nature of these two concepts and the difference between the custom of one era compared to the custom of another era, it seems necessary to examine the inclusion or exclusion of the definition of sale with respect to non-material assets and financial rights, and also to obtain the correct criterion for the property status of things.
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