Research on the Positive Rule (Status Verdict) of an Unknown Sale with the Attachment of a Known Object; with the Focus on Imam Khomeini’s Book of Sale

Document Type : scientific

Authors

1 PhD student in Jurisprudence

2 Assistant professor at University of Qom

Abstract

The legislator stipulates in Article 342 of the Civil Code of the Islamic Republic of Iran: “The amount (quantity), kind and description of the object of sale must be known”. This article is rooted in Imami jurisprudence and according to jurists, lack of knowledge about the kind, quantity (amount) and description of the object of sale causes aleatory which is forbidden and aleatory in the transaction causes invalidity. In this position, if an unknown sale is concluded with the attachment of a known object, it is debatable whether the obstacle of aleatory will be removed with a known attachment or not. The positive rule (statute verdict) of this transaction is a dispute among jurists. In the meantime, Imam Khomeini’s argument is completely different from the views of other jurists and states as follows: the narrations in this regard, in the position of expressing the correct verdict for the unknown sale to the attachment of a known object -which is invalidated by aleatory- may not; rather, the mentioned narrations have entered a place where there is no aleatory at all. The result of research in this regard shows that in an unknown sale with the attachment of a known object, or like the Imam (may Allah have mercy on him), the narrations included in this issue should be abandoned and such a sale should be considered invalid; because extracting the verdict of authenticity from these narrations is contrary to rational rules, or if one believes in the existence of consensus on the authenticity of this sale, should suffice with certainty (up to the certainty) (texts) and it is not appropriate to use the known appurtenance as a general rule for the allocation of the unknown sale prohibition was accepted.

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