نوع مقاله : مقاله پژوهشی
1 عضو هیئت علمی
2 پژوهشگر پژوهشکده پولی و بانکی
عنوان مقاله [English]
Article (shartd) rule is the most used jurisprudential (fiqhi) rule in banking contracts. This rule means that some articles (al-shoroutd) can be included in contract that are binding where they have the validity (sihhat) conditions. Based on this contract, not every article (shartd) can be included in contract; it will be binding where it has some qualifications. The main question of the paper is whether banks have correctly benefitted from the capacity of article (shartd) rule in making banking contracts. The paper through a descriptive methodology and content analysis method and using imamiyya jurisprudence (fiqh), tests this hypothesis that conditions included in contract (shoroutd dimn-al-aqd) in some of banking contracts have some insufficiencies from the point of accommodation with measures of condition (shartd) rule. If this hypothesis proves to be true, banks should review banking contracts in order to correct them. The results show that conditions like consideration (vajh-al-iltizam), irrevocable power of attorney (wikala bila azl) and compensating the loss in mudaraba have canonical deficiencies. Moreover, conditions like determining insurance costs, probable losses, taking hands off from lesion option in an imposed manner and one-way condition are in in behalf of bank such that make the whole contract unjust and the applicant of loan is put under coercion (idtirar) conditions.