نوع مقاله : مقاله علمی پژوهشی
نویسندگان
1 استادیار دانشکده حقوق و علوم سیاسی دانشگاه تهران، ایران
2 دانشجوی کارشناسی ارشد حقوق خصوصی دانشگاه علوم قضایی و خدمات اداری دادگستری، تهران، ایران
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
“Sharia tricks” are solutions that, according to general rules the parties of contract are allowed to use them, but, as the parties’ purpose is to abscond from religious and legal prohibitions and restrictions, there are disagreements about its validity in the Islamic jurisprudence. Some jurists referring to principle of correctness believe on legitimacy of using it. In contrast, some believe that sharia trick is invalid. The most significant reason for those who believe in its invalidity is the obscenity of violation of lawgiver's purpose. The purpose of lawgiver in banning usury is oppression or other kinds of corruption in it. By changing the title and at the same time allowing such corruption, the purpose would be violated which is reprehensible and in fact, the lawgiver dos not commit it. In the Iranian legal system also similar contrasts are visible. A unanimous approach could not be inferred from civil code. However, it seems that the issue should be solved regarding to general principles. The adopted approach in this article is emphasizing on real intention for creating contract. As a result, it should be considered that in spite of applying Sharia trick whether the two contracting parties have a serious intention to deal or not. The negative answer to this question, means nothing but contract's invalidity. In this article, by introducing a case study, apart from the theoretical discussion in this regard, an attempt is made to imagine the judicial procedure approach.
کلیدواژهها [English]
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