نوع مقاله : علمی
نویسنده
استادیار، گروه فقه و مبانی حقوق اسلامی، دانشگاه علوم اسلامی رضوی، مشهد، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
One of the principles used in Islamic jurisprudence of transactions is the jurisprudential principle of “negation of aleatory sales” or “negation of aleatory” (Arabic: اَلْغَرَر, al-gharar). Shaykh Anṣārī’, in his discussion on the condition of knowledge concerning the exchange items (considerations) in sales (Arabic: اَلْبَیْع, Romanized: al-Bayʿ) specifically regarding measurable and weighable objects, stated that one of the reasons for the necessity of knowing the considerations and the requirement for measuring the object of sale by quantity and weight is the Ḥadīth prohibiting aleatory sales. He further adds that the comparison of the Ḥadīth on aleatory sales with the narrations regarding measurement and weight indicates that the type of aleatory referred to here is general aleatory. However, in the discussion of the buying and selling of cloth, sheep, and land based on observation, he states that since there is no narration related to specification and measurement, the criterion of personal aleatory applies. The question that arises is what the difference is between the two cases, in one of which a ruling is given regarding general aleatory (Arabic: اَلْغَرَر, al-gharar), while in the other case a ruling is given regarding personal gharar. Does the mere lack of a reason for necessitating measurement in the second case result in the gharar being classified as personal? This article critically examines the statements of the late Shaykh by descriptively and analytically reviewing the narrations in the issue of measured and weighed items and their connection to the Ḥadīth negating gharar. It establishes the hypothesis that, considering that the establishment of religious rulings (Arabic: الأَحکام الشَرعیَّة) occurs as real propositions, and consequently, the existence of a ruling depends on the existence of its subject, in all cases the criterion for the principle of gharar (aleatory), similar to the rule of prohibition of detriment (Arabic: لا ضَرَرَ, principle of harm), is personal aleatory, rather than generic aleatory, and there is no distinction between these two matters. Obviously, the difference between the effect of personal gharar and the effect of general gharar will play an important role in the ruling of sales and new unknown transactions, which also guarantees the necessity of this discussion.
کلیدواژهها [English]
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