تطبيق الملكية القانونية و الملكية النفعية في التمويل الإسلامي

الملخص EN

This paper focuses on Shariah provisions concerning the application of common law doctrine of legal and beneficial ownership in Islamic finance.

The paper concludes that the divisibility of ownership into legal and beneficial is unknown to the classical fiqh authorities, hence it must be viewed as a form of ijtihad open to either accuracy or error of judgment.

The determinant of what is, and what is not, legal in this respect therefore depends on the extent of which a concept of ownership, be it legal or beneficial, fulfills the Shariah requirements.

Major findings of the study also include that the proprietary rights in some modern contracts of Islamic finance are bogus, and the main factor responsible for that is this notion of dual ownership.

The paper suggested measures capable of enforcing the investors’ complete ownership rights as provided by Shariah, particularly the right of alienating the underlying assets whenever necessary