عقد مضاربه

The most significant jurisprudential challenge regarding joint-stock companies lies in identifying their nature and position among Islamic jurisprudential company models, as well as determining whether a joint-stock company is a contractual agreement or merely an organization formed for conducting business with the assets of a group of shareholders. Among jurists and legal experts, there is a lack of consensus on this issue. Even if the theory of joint-stock companies being a contractual agreement is favored, difficulties arise in aligning this company type with jurisprudential company models. Key obstacles to accepting joint-stock companies as contracts include the existence of assets distinct from the shareholders’ personal assets, the independent legal personality of the company, the mandatory regulations governing company management, and shareholders' adherence to majority decisions.According to contemporary jurists, among Islamic contracts and company models, ‘inan partnerships and mudarabah contracts share the closest structural similarities with joint-stock companies. However, the emphasis of commercial law on selecting board members exclusively from among the shareholders presents a significant challenge to aligning joint-stock companies with mudarabah and ‘inan contracts.This descriptive-analytical study concludes that while aligning joint-stock companies with the ‘inan partnership is feasible, considering them as a new and innovative partnership contract, based on the principle of validity and freedom to enter into legitimate contracts, is more justifiable than other approaches.

The expansion of the institution of the bank in the societies and the effects of the legal relations formed in connection with it are so vast that it casts a shadow on all the economic aspects of human life. The preparation of a legal form for investment deposit within the framework of certain contracts led him to establish Article 559 and in the struggle of this thought, the mudarabah contract has taken precedence over other forms, but the legislator, by establishing the law on banking operations without usury, is inclined to the proxy contract. The existing works, by emphasizing the differences between the power of attorney contract and the investment deposit account, have emphasized the uncertainty of the legal relationship that has occurred; The position that is in the order of erasing the problem statement; Because simply calling the legal relationship indefinite without prescribing a special framework and rules will not only solve the problem; On the one hand, it will cause many problems for the banking network, such as what is the form of the relationship between the depositor and the bank and what rules does it follow, and on the other hand, it will cause conflicting opinions in the judicial system; In this article, an attempt has been made to give a logical answer to the problems raised by this group on the legislator's position of the law on banking operations without usury, with the help of the descriptive-analytical method and by adhering to the opinions of the Imami jurists and the general rules of the civil law, and in this way, the legislative theory Based on the power of attorney, knowing the above relationship is proved.

From the perspective of civil jurisprudence, the trustee is not liable for any damages unless in case of excessive use or failure of due care. However, a question arises whether a trustee may be liable, by inserting a condition, even in the absence of excessive use or failure of due care? This is a controversial precedented issue in the Islamic jurisprudence and the aspect which makes it up-to-date is its analysis in “banking profit and loss sharing contracts including Mudarabah”. The vast majority of Shiite and Sunni jurists consider the stipulation of the trustee’s liability in the form of a “corollary condition” as “null and void and invalidating” due to its being against the requirements of contract and its contradiction with the requirements of trust, ownership and representation of Mudarabah. The few jurists, under whose fatwa liability in the form of condition about performance is valid, consider this condition as a promise which merely creates a “pure imperative rule” and is not capable of creating “the positive rule of liability”. It appears that the evidence of those who consider this condition as valid are not convincing and the evidence of opponents such as the absoluteness of “Sahiha of Mohammad ibn Ghais” which declares the stipulation of merchant’s liability as the cause of the “transformation of Mudaraba nature” into usurious loan, are preferable. Although the Iranian legislator has also accepted this opinion in article 558 of the Civil Code, article 12 of the Executive Directive of Usury-Free Banking Act passed in 1984, has permitted the trustee's liability which needs amendment. This research is based on a descriptive-analytical method and the use of documentary collection tools. The main approach of this paper is jurisprudential; however, given the need to analyze the relevant Iranian laws, the issue has been studied from a legal perspective as well.