حكم التكسب بالشرط الجزائي في الالتزامات المالية : دراسة فقهية

Abstract EN

The penalty clause has become very common in contracts and financial commitments recently, for reasons such as hedging against damages and the desire not to leave the damage assessment to the judiciary.

The expanded use of such clauses and compensations has resulted in the possibility of using them to earn more than the actual amount of damage, which raises some Sharīʿah concerns.

It is also noticeable in the contemporary fatwas relating to this matter that different rulings have been given for similar issues and that compensation has been expanded.

The research deals with these issues using fiqhī analysis based on the objectives of Sharīʿah rules and existing market practices, and employing an inductive and analytical methodology.

The most important conclusions it has arrived at are that the principles and objectives of the Sharīʿah do not prohibit the principle of compensation for damage; however, earning profit from a penalty clause is prohibited by the Sharīʿah.

If it is difficult to precisely calculate the actual compensation, it is permissible to adopt an estimated amount when there is certainty that the penalty clause is not being used as a means of earning.