آراء العلماء في التفرق المقصود في خيار المجلس و تطبيقاته الفقهية : دراسة مقارنة

الملخص EN

The contract of sale is , originally, concluded if its elements are available and its terms and conditions met , where the ownership of the sold item transfers to the purchaser and the ownership of the price as well.

The legislator , however, has taken the interests of the legally competents into account.

He has given an apportunity for consideration, which is called (option) which enables the seller and the purchaser whether or not the sale should be gone based on what works and suits both.

To not let disputes and conflicts arise , there is a hadith of the Prophet Muhammed (PBUH) reads: “ The purchaser and the seller have option unless they do not separate from each other’’.

Hence , Ulama differed in this doctrinal issue.

Some of them goes that the seperation is a physical one.

that’s what the jumhoor of alshafiiyeh and hanbilas went.

and decscendents and this means the establishment of the board’s option.

And some others think that the seperation should be considered by the offer and acceptance of the contract.

If the offer and acceptance is performed , thus the board of the contract is considered and the option is declined , which was permitted during the contract and it is required that both the purchaser and the seller separate physically and this is what the jumhoor of al-hanafeea and almalikiyah went.

They have , initially , denied the option of the board.

Each of the groups has stuck to several pieces of evidences .

Accordingly , the researcher reached the conclusion that the option of the boards is established ; and this option does not expire unless the purchaser and the seller do separate from each other physically and this is the preponderant statement due to their strong pieces of evidence.