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  • Author or Editor: Suhaib Walid Sharaiyra x
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Abstract

This study deals with the effect of ġarar (uncertainty) and jurisprudential necessity on the Sharīʿah permissibility of commercial insurance contracts, using an analytical and critical approach. The study clarifies the meaning of ġarar, and its effect on contracts, by verifying the effective cause of ġarar, determining its degree, and ascertaining the rationale for its prohibition. The criterion for differentiating between trivial and substantial ġarar is discussed, as well as the views of jurists who permit insurance contracts through a holistic view approach, contrary to the traditional view. The study distinguishes between ḥāǧah (necessity) in the jurisprudential sense, general necessity as expressed in the objectives of the lawgiver, from the concept of ḍarūrah (essentiality). Furthermore, the study highlights an important jurisprudential rule that has direct effect on the permissibility of insurance contracts, i.e., ‘what is forbidden for the prevention of the means (of corruption) is permitted for the preponderant interest’.

In: Arab Law Quarterly

Abstract

This article aims to discuss the effect of motive of organised tawarruq parties on its permissibility and to shed light on the importance of considering the overall objectives and goals of Sharīʿah when conducting transactions. An analytical and deductive approach is used to examine the reality of organised tawarruq (al-tawarruq al-munaẓẓam) and the motive behind it as well as the validity of reference to and conception of the texts used in support thereof. The discussion concludes the presence of misinterpretations of the Sharīʿah texts referred to in support of organised tawarruq, as well as obvious overlooking of the motives behind it, which should have led to the exclusion of organised tawarruq from the permissible modes of Islamic finance. This article provides a comprehensive view of organised tawarruq, in terms of its motive, form and substance, in order to assist in reviewing the capability of its use as a financing tool.

In: Arab Law Quarterly