الشرط الجزائي في الديون و البدائل الشرعية له في التطبيقات المصرفية

الملخص EN

This research highlights the punitive condition in terms of its concept and regulation and the alternative rules in banking applications.

The research aims at identifying the scholars’ opinions concerning this subject because of its importance which is manifested in the following points: 1.

The modernity of the subject under discussion which hasn’t been approached in the old aspects of jurisprudence; 2.

Its usage by the Islamic banks (despite the suspicions raised about it) as effective and efficient means in getting the borrower to fulfill his obligations.

The present research comes to add – despite the fact that it has already been discussed by contemporary scholars, as it will be shown in the research - on this subject the following: 1.

Re-editing the scholars opinions because of the lack of precision in understanding their views which led to the attribution of the unsaid statements to scholars, a fact that called to re-edit them in a correct way and to customize them to specific topics and forms in order to show the readers the accurate views of each scholar.

2.

To crystalize the topic in an accurate way in order to fully purify the subject.

Although the subject seems to encompass a single matter, however, the person who meditates upon it will discover several issues which differ in terms of form and substance, hence, changing the rule.

The research concludes two things: 1.

The rule of the punitive condition –which means getting an extra amount of money on the origin of debt – is forbidden regardless of the type of the loan because it is a kind of “ribā an-nasīah” (the delay usury); 2.

There are alternative legislations and indications from Islamic law (Sharia’ a) that can replace the punitive condition such as mortgage and warranty in addition to the punitive penalties to force the borrower to fulfill his commitments.