نوع مقاله : علمی ترویجی
نویسنده
پژوهشگر رسمی معاونت پژوهش حوزه های علمیه و سطوح عالی و خارج حوزه علمیه قم و گروه فقه و حقوق خصوصی، دانشکده علوم و معارف، جامعه المصطفی (ص) العالمیه، قم، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The contract of guarantee (ḍamān) has long been regarded as a central institution in Imami jurisprudence, traditionally defined on the basis of naql al-dhimma (transfer of liability). According to this view, the debt is moved from the original debtor to the guarantor. While this classical doctrine gained a firm place in juristic tradition, it has lost much of its practical relevance in light of modern social and economic realities. In contemporary contexts—such as bank guarantees, construction contracts, property insurance, and credit arrangements—the traditional model no longer provides an adequate explanation. To address this gap, contemporary scholars have advanced the idea of “customary guarantee” (ḍamān ʿurfī). Unlike the classical model, it is not based on transferring debt but on the guarantor’s undertaking to indemnify losses or ensure fulfillment of obligations. This type of guarantee operates as a contractual or even unilateral commitment, validated by custom and practical necessity, and thus differs fundamentally from the dhimma-based framework. Sayyid Muḥammad Kāẓim al-Ṭabāṭabāʾī al-Yazdī (d. 1919) played a pioneering role by recognizing the legitimacy of guarantees beyond strict debt transfer in works such as al-ʿUrwa al-Wuthqā. In modern Iran, Ayatollah Sayyid Muṣṭafā Muḥaqqiq Dāmād reformulated these insights in his General Theory of Conditions and Obligations. This study concludes that redefining guarantee in light of custom and current needs is compatible with Imami jurisprudence and enhances its capacity to engage with modern legal institutions.
کلیدواژهها [English]
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