جستجوی مقالات مرتبط با کلیدواژه « استصناع » در نشریات گروه « فقه و حقوق »

In conventional banking (conventional or western) or paying for profit, it is part of the essence of banking operations, and on this basis, the relationship between depositors and the bank, as well as the relationship between the bank and the recipients of the facility, is explained in the framework of a loan agreement with a predetermined interest, but In Islamic banking, in order to prohibit interest, the situation is completely different. Islamic banking, based on the implementation of banking activities in accordance with the rules should regulate all its activities within the framework of Islamic financial instruments, or Islamic contracts, by participating in profit and loss, without considering the definitive profits, in most cases with customers. After the victory of the Islamic Revolution, serious discussions about the Islamic banking system were formed and based on the principles of banking law based on the observance of the rules and based on this contracts were foreseen to meet the requirements of the applicants in the Law of Banking without Raba. Following the implementation of the law of free bank operations since the beginning of 1363, the formation of contracts affected by various factors, such as the lack of funding of applicants for funds within the framework of the existing contracts, is one of the major shortcomings of the Islamic banking system. In order to realize the development of Islamic financial instruments in the country's banking system and to prevent the formation of contracts, the ASTM contract as a new tool was added to the third chapter of the Law of Non-Risk Banking Law in 2011. The newness of the marriage contract, the failure to mention the independent legal title, and its detailed review of civil law, as well as the failure to observe the widespread use of this marriage contract in the country's banking system, presently have many questions about the legal nature, legal history, jurisprudence, and the issues. Theoretical, executive guidelines and strengths and weaknesses of this newly established legal entity are intended to be explored in this article, in which it is attempted to investigate as far as possible the aforementioned issues.

Estisna contract is made between a client and a manufacturer. It is conducted in this way that the client asks the manufacturer for a specific product. After that the manufacturer accepts the order and promises to prepare raw materials, manufacture the product, and deliver it at the due date. The client is also obliged to pay the agreed fee stated in the contract. There is disagreement about the nature and validity of this contract between jurists and legal experts. Some consider Estinsa contract as an independent sale contract, others as forward sale contract. Anyway this contract is considered to be a valid contract in Iranian law. Todays this contract can play a significant role in the Islamic banking system. Using the framework of this contract, banks can finance projects of the public and private sector. They make this contract in two ways: some times as an investor and a representative of the client who demands the product, and sometimes as an intermediate.

One of concerns for governments in building infrastructure projects, is selecting the type of Construction contract concludes with the builder contractor. There are various contracts for the construction of an infrastructure project that can be selected by their governments to take action. Each of these contracts has its own advantages and disadvantages which is different with other contracts and makes their performance different. Governments according to their economic situation and technical characteristics of each project and advantages and disadvantages of construction contracts, select a type of these contracts for their intended project. Among these construction contracts are, B.O.T contract and Istisna contract and each has their own advantages and disadvantages. Some of these advantages are more important and plays a more important role in the success of a project, especially the issue of reducing government spending in building infrastructure projects that is one of the most important factors affecting on building infrastructure projects and due to budget constraints, governments try to use from contracts that has lower cost for them. With comparison of advantages and disadvantages of istisna contract and B.O.T contract we realize that B.O.T contract, due to its unique features, has a very good role in reducing government infrastructure costs and in this field is better than the Istisna contract. In addition to this advantage, also B.O.T contract has a better performance in other advantages of the Istisna contract and in total it seems that it must be said that BOT contract has more advantage than Istisna contract.

Istensna contract is a recommendation for the particular object that results in agreement between the producer and the client. There are differences in nature of this contract among jurists and lawyers. Despite the different opinions, it can be believed that Istesna is an independent contract and because object of sale does not exist in time of conclusion of contract and exists after some time in the future, there will be a conditional contract. The present article analyses recent viewpoint about Istesna.

The most important question in connection with future goods (Istisna’), the passing of property, will be dealt. When dose the passing of title take place: the time the contract is made or goods is manufactured or the manufactured goods is delivered? Undoubtedly, identifying the nature of Istisna’ contract has direct impact on the passing of property.The dominant tendency in Iranian law is that the Istisna’ is a sale contract, and some of the jurists say that it is an enterprise contract. The Pre-sell Building Act (2010) has not clarified the issue. The Afghan Civil Code has expressly provided that Istisna’ is an enterprise contract which is taken from Egypt Civil Code.In this article, our aim is to study the time of passing of the title by examining both of the above mentioned assumptions, and also to explain the exact nature of Istisna’. Our idea is that the Istisna's nature is a combination of sale and employment contracts. That means, Istisna’ is an independent contract; not just a sale contract or an employment contract.

Manufacturing contracts are amongst the most applicable contracts with great relevance to human needs in the current trade markets. In a manufacturing contract which involves giving an order for manufacturing something, the contractor agrees to make and deliver a certain commodity with certain qualities and features as defined in the contract in accord with the order given by the client.
Generally speaking, there are two main views about manufacturing contracts with some considering it as an allowable [jayiz] or unbinding contract in which case the option for revoking or rescinding the contract has no meaning. That is because in an allowable contract, the two parties enjoy the right to cancel the contract under any circumstances. Most ancient Muslim scholars and their successors discussing sale contracts, rent, compromise and such other independent contracts have said that such contracts are binding. The present research stressing on the second view (principality or primacy of the binding nature of a contract except for certain cases of allowableness) has examined and proven the right of option in a manufacturing contract. The subject of making use of the option of revocation in a manufacturing contract proves that the parties to the contract cannot rescind a contract without a valid excuse.

The complex contract is the contract that is mixed with various structures of other specific contracts which have lost their independence and make up a unified whole. In Islamic law jurists mention some contracts like Mozrebah، Mozareah، hire، etc. which are similar to complex contract. There are some controversies over the nature of complex contract. Some scholars suggest Solh agreement. Others believe that this contract is always one nonspecific contract، and some say we must break up this contract to its ingredients. This article shows that the correct view is considering main effect of each contract as general contract and the other as subordinate and conditions of main contract. Based on this view، this article analyze the nature of some complex contracts like hotel agreements، credit cards، leasing، service lines of water and gas and the nature of conditioned leasing، and suggests them for renting for possession and renting things for the hotel. For contract agreement it believes in the independent agreement. It claims that the complex contract is against Islamic rules and regulations.

Today manufacturing contract has a special place in the big and small transaction. the subject of manufacturing contract is the made of goods that manufacturer has recommended to maker with determining of attributes and characterizes with preparation primary materials to make it in a specified time and shall delivered to manufacturer. Manufacturing contract in fourth school of religious jurisprudence is propounded in form of forward or unidentified sale and imamie Jurisprudence some precursor jurisprudence referred to it. Iranian civil law does not make any direct reference to manufacturing contract. those if we believed based on one of the definite contracts like sale or rent or reward or a combination of both should be derived from to it in terns of the current legal principles that contract. Otherwise we can rationalize the independence of the manufacturing contract based on the generalities of contracts the principle Of the freedom of contract and the common thought.

Today “the sale of future goods” in the local and international business has been mostly common. In this type of sale, goods do not exist at the moment of concluding the agreement. Rather, they will happen in the future. In this article we will investigate the veracity of the sale of future goods in Iran and Islamic law. Besides, the different types of such sales as well as the process of the possession transaction will be discussed. The two main questions posed in this article are as follows: 1- Among different types of goods inserted in the provision 350 of the civil law which ones are the goods in the sale of future goods? 2- Considering the sale of future goods, when does the possession transaction happen?