The Uncertainty in the Islamic Jurisprudence/ An Analytical Comparative study with both the Iraqi and French Civil Codes
Keywords:Uncertainty, excessive ignorance, Utter indefiniteness, Deception, doubtfulness.
The concept of the uncertainty is well-known in the Islamic jurisprudence. This jurisprudence knows also the concept of the excessive ignorance, and distinguishes clearly between it and the uncertainty. The majority of the Islamic jurisprudence considers the sale of non-existent subject-matter of the contract null and void due to the uncertainty. But there is a reasonable opinion in this jurisprudence considers that every non-existent subject-matter of the contract which is uncertain to exist in the future, is prohibited from being sold, and the contract of sale is null and void. And every non-existent subject-matter which is certain to exist in the future can be sold validly, and the contract of sale is valid, in spite of the non-existence of the subject-matter at the time when the contract is concluded. The cause of the prohibition is not the non-existence of the subject-matter itself, but the uncertainty vitiating this non-existence. The Iraqi civil law No. (40) of 1951 adopts both the concepts of uncertainty and excessive ignorance. and the French civil code of 1804 does not mention the uncertainty in its texts, but requires that the content of the contract be certain and licit, in order for the contract to be valid.
1 Books of Islamic jurisprudence
Al-Babarty. Sharh Fath-Al-Qadir. Part Five, Egypt. 1315 A.H.
Al-Darir, Siddiq Mohammad Al-Amin, Al-Gharar in Contracts and its Effects on Contemporary Transactions and Applications, The Islamic Institute for research and training, jeddah, 1993.
Al-jurjani Ali Bin Mohammad, Al-Ta'arifat (in Arabic) The definitions, Dar Al-kitab Al-Arabi Publishing house Beirut, 2004.
Al-Sarkhasi Shams Al-ddin. Al-Mabsut. 12th Part. First Edition. Dar Al-Ma'arifa Beirut. 1989.
Ibn Abidin, Muhammad Amin, Radd Al-Muhtar Ala Al-Durr Al-Mukhtar, Part Four, Bulaq Press Cairo, 1252 A.H.
Ibn Al-qayyim Al-Jawziyyah. . Aalam Al-Muwaqieen An Rabb Al-Alameen. , Volume -3- , First Edition, Dar Ibn Al-Jawzi for publication and distribution, Saudi Arabia,1423 A.H.
Ibn Hazm Al-Andalusi Al-Zahri. Al-Muhalla bi-al-Athar. Bait Al-Afkar Al-dawliyyah Publishing House. 2009.
Ibn Nujaim Al-Hanafi , Zain Al-deen, Al-Bahr Al-Ra'iq, Sharh Kanz Al-Daqa'iq, (in Arabic), Part Six, First Edition ,Dar Al-kutub Al-Ilmi'ah Publishing house. (Scientific Books Press) Beirut, 1997.
Ibn Qudama Al-Makdisi, Al-Mughni Wa Yalihe Al-Sharh Al-Kabir. Part Six. Third Edition. Dar Al-Kutob for publishing and distribution. Al-Riyyadh. 1998.
Ibn Taymiyyah Shaykh Al-Islam Taqi Addin Ahmad. 29th Part. Third Edition. Majmu' Al-Fatawa, Dar Al-Wafa for Publication and Distribution. 2005.
Muhammad Al-Zuhaili. Al-Muhadb Fi Fiqh Al-Imam Al-Shafie'y Li Abi Ishaq Al-Shirazi. Part Three. First Edition. Dar Al-qalam. Damascus. 1996.
Mustapha Ahmed Al-Zarqa. The General (Legal) Juristic Entrance. Part One. Second Edition. Dar Al-qalam. Damascus. 2004.
Wahba Al-Zuhaili. The Islamic jurisprudence and its sources, the comprehensive textbook on the legal sources and doctrinal opinions and the most important jurisprudential theories, as well as verifying and referencing the prophetic tradition, and the alphabetic indexing of topics and the most important jurisprudential subject-matters. Part Four, Second Edition. Dar Al-Fikr Publishing house for Printing, Publication and Distribution. Damascus. 1985.
2 Second: The Legal Books in Arabic
Abdul Majeed Al Hakim. The concise of the explanation of the general theory of obligations. Part one, sources of Obligations. a comparison with Islamic Jurisprudence. Baghdad. 1963.
Abdul Majeed Al Hakim. The Medium Commentary on the theory of contract, with the comparison and balancing between the theories of the western jurisprudence and their equivalent theories in the Islamic Jurisprudence and the Iraqi civil law. . Part one. Conclusion of the contract. Al-Ahliyyah company for printing and publishing. Baghdad. 1967.
Abdul Majeed Al-Hakkim, Abdul-Baki Al-Bakri, & Mohammed Taha Al-Basheer, The concise of the general theory of obligations in the Iraqi civil law. Part one, the source of Obligations, Ministry of Higher Education and Scientific research. Baghdad University, 1980.
Abdul Razaq Al Sanhouri. The Medium Commentary on the elucidation of the New Civil Code (Al Wasit in the Explanation of New Civil Law). part One. The theory of obligations in general. Sources of obligations. Contract-illegal act-Unjust enrichment-law. Al-Ma'arif Publishing house. Alexandria.2004.
Abdul Razaq Al Sanhouri. The sources of the rights in the Islamic jurisprudence a comparative study with the western jurisprudence . the subject-matter of the contract. Part Three. Al-halabi Juridique Publishing house. Beirut. 1998.
Abdul salam Al-Tirmanini. The Comparative Law, The major legal curricula. Kuwait University Publishing. Second Edition. 1982.
Adnan Ibrahim Al-Sarhan and Dr. Noori Hamad Khatter. The Explanation of the Civil Law, Sources of Legal Rights A Comparative Study. First Edition . Dar Al-Thaqafa for publishing and distributing. Amman Jordan. 2009.
Ahmed Salaman Shuhaib Al-Sa'adawi and Jawad Kadhum Jawad Sumaisem. The sources of Obligations, A comparative study with civil laws and Islamic jurisprudence. Second Edition. Zein juridique library. Beirut. 2017.
Dara'a Hammad, The general theory of obligations, Part one, sources of Obligations, Al-sanhouri Publishing house, Beirut, 2016.
Hasan Ali Al-Thannon and Mohammad saeed Al-Rahho.The nutshell in the general theory of the obligation. Part one, the sources of obligations, A comparative study with the Islamic and comparative Jurisprudence. First Edition. Dar Wael for printing and publishing. 2002.
Ismat Abdul Majeed Baker. The general theory of obligations. Part one. in Arab civil laws. Al-Thakira Publishing house. Baghdad. 2011.
Munther Al-Fadhel, The Medium Commentary on the explanation of the civil law, A comparative study between Islamic Jurisprudence and Arab and foreign laws, A study reinforced by opinions of both the jurisprudence and judiciary. Aras Publishing house, Erbil, 2006.
Samir Abd Al-Sayyed Tanaghou. Sources of obligations, Contract, Unilateral Will, Illegal Act, Enrichment without Cause, law and Two New Sources of obligations: Judgment and Administrative Decision. First Edition. Al-Wafa'a Legal Bookshop for Publishing Alexandria. 2009.
3 The Legal Books in French
Boris starck, Henri Roland et Laurent Boyer. Obligations 2. Contrat. Quatrième edition. Litec, Libraire de la cour de cassation. Paris.1993.
Francois Collart Dutilleul et Philippe Delebecque. Contrats Civils et Commerciaux . 6e edition. Dalloz. 2002.
Stephanie Porchy-Simon. Droit Civil. 2e anée .Les Obligations. Hypercours & Travaux dirigés. Dalloz. 2018.
4 The Laws
The Egyptian civil law No 131 of 1948.
The French civil code of 1804, amended by the ordinance n° 2016-131 dated February 10, 2016.
The Iraqi civil law No 40 of 1951.
5 The Legal Studies& Reports
Dan E. Stigall. Iraqi Civil Law: Its Sources, Substance, and Sundering. Journal of Transnational Law & Policy. Volume
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