The Nature of Gharar and Risk Contracts
Subject Areas : فقه و حقوق اسلامیHamed Nabizadeh 1 * , Mustafa Abbasi 2 , Khashayar Heydarian 3
1 - PhD student in Private Law, Department of Law, Faculty of Humanities, Aras International Branch, Islamic Azad University, Aras, Iran.
2 - PhD student in Criminal Law and Criminology, Department of Law, Faculty of Humanities, Lahijan Branch, Islamic Azad University, Lahijan, Iran.
3 - PhD student in private law, Law Department, Faculty of Humanities, Kish International Branch, Islamic Azad University, Kish, Iran
Keywords: Gharar, Gharar contracts, risky contracts, contingent contracts, compensation contracts, necessary supply, differential supply,
Abstract :
According to the Prophetic tradition, Ghari contracts are invalid according to the five Islamic schools of thought. Iranian legal laws also consider Ghari contracts invalid, following the Prophetic tradition. Definitions from dictionary books will not solve the problem of gharar in jurisprudence and legal sciences; therefore, it is imperative to refer to jurisprudence books of the five schools of thought and legal sources. Finally, by examining the jurisprudential books of Islamic schools, we clearly understand that there is no precise definition of gharar, because there is no text in Shariah on the definition of gharar, and the criteria for its identification are left to the customs of the community. Unfortunately, a search of many jurisprudential books shows that not only is there no precise and correct definition of gharar, but sometimes there is no distinction between gharar and risky contracts. The following article seeks to explore and examine the definitions available in jurisprudential and legal books on gharar and risky contracts. The problems encountered in these definitions are examined and a diligent attempt is made to present a specific and practical criterion for the aforementioned issues.
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