البيع بالصفة حقيقته وأحكامه ومناقشة بعض تطبيقاته المعاصرة: دراسة تأصيلية وتحليلية

Abstract

This research pertains to a significant area of study involving a wide scope of application worthy of analysis, namely, contracts of sale based on description. The research sheds light on the essence of sale based on description, as well as its multiple aspects. The research examines the relevant legal stipulations, various classifications and the different positions of Muslim scholars on the issue. The intricate scholarly discussion over the legal issues is explored deeply in order to arrive at the most adequate conclusion. The research explores the facts related to two major contemporary contracts, namely, (i) contracts for supply of goods, and (ii) sales of commodities in organized markets, and analyses their relevance to the subject of study. The research also concludes that among the principles of financial transactions that are required by the majority of Muslim scholars is that deferment of both counter­values, which is inherent to sales based on description, may lead to the sale of debt against debt, prohibited by the consensus of Muslim jurists. Thus, this issue cannot be taken lightly based on necessity, without there being any form of consensus on all its forms. The only means is therefore, to justify this necessity through collective ijhitad, founded on comprehensive research.