تطبيقات نظرية الظروف الطارئة في بيع التقسيط و المرابحة للآمر بالشراء في الفقه الإسلامي و القانون

الملخص EN

The Emerging Conditions Theory was initiated because of the unexpected exceptional accidents and circumstances (wars, earthquakes...etc) that cause disruption in the economic balance and a massive change in prices, which negatively affects the debtor’s commitment and causes him/ her to incur a heavy loss if the contract is fulfilled.

In this case, the judge interferes to amend the contract’s commitments and ease the debtor’s burden.

In fact, the Emerging Conditions Theory is excluded from the Theory of Contract Obligation.

This research is considered as an application for the Emerging Conditions Theory in Installment Sales, and the Murabaha for the Purchase Order.

This research is written at a time when unexpected conditions and circumstances that affect the fulfillment of contracts have become very frequent.

The study used the inductive, analytical, and comparative approach by examining the emerging circumstances that can affect installment sales and “Murabaha” for the purchase order and stating Islamic ruling as specified by scholars regarding each case, whether the ruling is a text extracted from their books or derived from their opinions.

I cited supporting evidence for each opinion, discussed it and chose between different opinions.

I also made reference to the opinion of the UAE legislator regarding these issues, bearing in mind that law is compliant with the opinions of the scholars of Islam in this respect.

Based on the research findings, I concluded that the Emerging Conditions Theory is applied in Shari’a even if its name does not exist in its sources, and that there is ample evidence that proves its application.

This confirms that Islam is a religion of justice and fairness in every respect and that all its rulings are based on bringing benefits and avoiding detriments.