سید سعید حسینی یکتا

The contract of sale is one of the oldest and most common contracts in societies. This important contract has been signed by the holy legislator in the sacred Shari'ah of Islam and due to its customary nature, the jurists have provided definitions of it. By carefully reflection on most of the definitions it is understood to mean that the object of sale must be a concrete object, whereas nowadays properties that do not exist externally, such as digital currencies and various types of rights, including copyright, goodwill, etc., are commonly bought and sold. Examining the viewpoints of the jurists, it is clear that there is disagreement among the jurists regarding the obligation of the object of sale to be objective, and some of them have defined the sale as "transfer of possession" and others as "transfer of object". There is also disagreement in this regard in the opinions of lawyers. In the Quran and tradition, there is no mention to the necessity of the objectivity of the sold property. Also, no text has been found for this issue in jurisprudential sources, and earlier jurists have specified this condition based on the fatwas of other jurists. Although in 1928 AD the definition of the contract of sale was considered as a definition compatible with society and custom, but in the current period the arguments of the proponents of objectivity are unacceptable and subject to criticism and the term "object" should be removed from the definitions and a term compatible with the customary reality be replaced. According to the authors, this term is “property”, including concrete object, right, benefit, etc. This research has been done with a descriptive, analytical method based on library sources.

One of the most important rights of the creators of literary-artistic works is copyright. This right is considered to be one of the economic rights of the creator and is still widely traded between creators and publishers. In two ways, this right is worth pondering; First, the religious validity of this right, which has been denied by some great jurists; Second, the lack of a legal provision on the nature of copyright trade, which has obscured the transfer of this right. Most jurists believe in concluding this contract in the form of Article 10 of the Civil Code and have denied the conclusion of the copyright in the form of a sale contract according to the elements in the definition of this contract and have proposed problems in transferring this right in the form of a sale contract. In contrast, in the Egyptian legal system, most Sunni jurists, except Hanafis, have considered the transfer of this right to be possible in the form of a contract of sale. Finally, studies conducted by the authors concluded that copyright is a legitimate right. It is also appropriate to transfer this right in the form of a sale contract and there is no need for Article 10 of the Civil Code to explain the nature of the transfer of copyright, but the intention of the parties can give the face of the sale contract to the transfer of Copyright.

The truth of sale has long been considered by Imamiyah jurisprudents and in their jurisprudence books with their definitions of the contract of sale have been expressed their views on the truth of this contract. In the present age, with the development of capable of being owned and recognize property something’s are non-existent but traditionally considered to be a purchase and sale, the question arises whether these new contracts can be incorporated into the contract of sale? According to the famous view of the jurists, which is also followed by civil law, the object of sale in the contract of sale must be from standing property in its narrow sense, there is another view that considers the interpretation of the object broad and considers the object vs. profit. Emphasizing on the customary nature of the contract of sale. The present article with emphasizing the customary nature of the contract of sale seeks to examine the truth of the contract of sale and to review the definitions of the scholars with regard to its customary truth and the conclusion is that the truth of the contract of sale, is a property-to-property exchange, and both views are critical and are incompatible with the customary reality of the contract of sale. According to the authors, Article 338 should be revised in the definition of the contract of sale and provide a definition that is consistent with customary reality. This research has been done by a descriptive-analytical method and based on library resources.