A Comparative Study of the Legitimacy of the Conditional Sale in Hanafi Jurisprudence and Imami Jurisprudence

There are many differences of opinion in Hanafi jurisprudence regarding the legitimacy of the conditional sale. There are at least three theories about this: Legitimacy of conditional sale as a mortgage contract. Invalidity of that due to the inclusion of a condition contrary to the nature of the contract. Nullity of conditional sale due to the conformity of its reality with a usurious loan. The last theory has affected to the nullity of the conditional sale in the civil law of Egypt, Jordan and Syria. With influence from the first theory, the Iraqi and Algerian civil law has legislated the conditional sale as a mortgage. In Imami jurisprudence, by referring to the general evidence of transactions and also to specific traditions, the legitimacy of that has been proved by analyzing its nature as a conditional sale contract. In this article, the arguments of those who claim invalidity, Nullity, being a compound contract and being a mortgage of conditional sale in Hanafi jurisprudence are criticized. According to the general evidence of transactions such as “Keep your promises”, “Your transactions should be based on agreement”, “God has made the sale lawful” and “Believers must fulfill their terms”, the legitimacy of the conditional sale as a contract of sale has been proved.