بيع عقار قيد الإنشاء : بين العدم و الغرر

Abstract EN

Most of the civil law legislation in Arab countries, including the UAE Civil transactions Act, has enacted in its legislation on financial transactions rules by reference to Islamic jurisprudence as the basis of fair judgments or a basic purpose.

In particular, this jurisprudence has been widely used in various types of transactions, including the contract of sale, that as soon as a new transaction is in place, the doctrinal opinions attempt to reassure clients that this transaction is properly treated without suspicion of prohibition.

The provisions of the contract of sale had a significant share of the old and new doctrine studies as a result of the development in commercial and civil transactions, until this contract has become a means of circumventing the Sharia'a in forbidding the loan-sharking, as in the sale of the sample.

The UAE legislator was not immune to some of these controversial transactions, such as selling a property on the map.

To be more accurate in our argument, let us recall what this sale is like in the Emirate of Dubai.

Even though the legislator is keen to follow the legitimate sales as approved in the Malki doctrine, we noticed that some sales are difficult to qualify as legitimate.

We talk here about the buyer selling a property under construction.

Dubai legislator gave the buyer ownership of the property in progress with a common share of land owned by the real estate developer on which the real estate units reside.

Whenever a real estate unit on the map is sold, the new buyer owned it with a common share on the land.

There are no difficulties to adapt this within the istisna’a contract, adopted by Hanafiyya scholars, but the Dubai legislator went further when he allowed the buyer to resell the unit even before he receives it.

And here we raise the question as to the legal basis adopted by the legislator to permit such a sale.

In this study, we try to highlight the concept of selling the unowned and whether it is synonymous to the risk, or each of them has different limits, in order to figure out the legal basis that gives the buyer the right to resell a real estate unit in progress to another buyer.