Reinvestigation of the Jurisprudential Bases of Selling Financial Rights in the Jurisprudence of Islamic Denominations

A group of Imami jurists, based on the well-known definition in which selling (bay‘) is defined as “ownership of a definite object instead of a definite alternative”, have opposed the purchase and sale of “financial rights” due to its non-objectivity. Among Sunni jurists, Hanafis have also considered the sale of rights as a problem due to its lack of financial value; while the scholars of Maliki, Shafi‘i and Hanbali jurisprudence believe in the validity of the sale of intangible property, such as interests and rights. In addition, some other Imami jurists have confirmed consideration of financial rights as the price of a sale; they perceived the selling of such rights as a price within the concept of sale. This research, which has been conducted through an analytical-descriptive and comparative method, aims at investigating the possibility or impossibility of selling financial rights in the jurisprudence of Islamic schools of thought. Since there is no certain definition of “sale” (bay‘) or “property” (mal) in the Islamic Shariah, and the explanation of the meaning and nature of the two has been left to custom, it is necessary to analyze the nature of sale and property with the presence of modern custom and re-examination of the proponents and opponents’ arguments on the sale of financial rights. The findings of the research, after reviewing the jurisprudential principles on the sale of financial rights indicate that the theory correctness of selling such properties is valid.