نوع مقاله : مقاله علمی پژوهشی
نویسنده
استادیار گروه فقه و معارف اسلامی جامعه المصطفی العالمیه خراسان، مشهد، ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Nowadays, the issue of sham contracts or simulated contracts has created many challenges and problems in Islamic societies, because a sham contract (simulated contract) according to the fundamentals of Islamic jurisprudence is invalid, but in the meantime, it is very difficult to distinguish the sham contract or simulated contract from the authentic contract or genuine contract. Accordingly, it is necessary to provide an illustrative standard for the recognition of simulated contracts. In order to achieve the standard, the concept and components of the simulated contract must first be determined so that in the next step, the indicators of the simulated contract can be achieved. Therefore, it has been tried in this article, with a descriptive-analytical method and based on the fundamentals of Jawāhir jurisprudence or Jawāhir al-kalām fī sharḥ sharāʾiʿ al-islām (Arabic: جَواهِر الکَلام فی شَرح شَرائِع الإسلام), to take a comprehensive look at the rational and traditional teachings of Islam, first to refer to the concept and fundamentals of the nullity of sham contracts (simulated contracts) in Jaʿfarī jurisprudence, and then to present the components of a sham contract in Jaʿfarī jurisprudence. The results of this research indicate that the signs and presumptions of a sham contract are: Lack of awareness of the parties about the terms of the contract, muḥābāt al-mubtadhal (Arabic: مُحَاباة الْمُبْتَذَل), non-compliance with the customary requirements of the authentic contract or genuine contract, cancellation of Shāriʿ (the Legislator) ruling with intertwined contracts, and the use of cover titles that are contrary to the main nature of the contract.
کلیدواژهها [English]
قرآن کریم
نهج البلاغه
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