Investigating the Theoretical Root of Objectivity of the Sold Property in the Iranian Legal System and Imamiyah Jurisprudence

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.