Introduction

Jurisprudence and Law of Contracts (General Quranic Evidence) is a jurisprudential research work authored by Ayatollah Abolqasem Alidoust, a professor of advanced jurisprudence (dars-e kharij) at the Qom Seminary and a faculty member at the Research Institute for Islamic Culture and Thought, within the Department of Jurisprudence and Law of the Islamic Systems Research Center. Published by the aforementioned institute, this book is the subject of the following content-based review.

Bibliographic Information: Jurisprudence and Law of Contracts (General Quranic Evidence), Alidoust, Abolqasem, Tehran: Research Institute for Islamic Culture and Thought, 620 pages, 7th edition, 2023 CE.

Purpose and Scope of the Book

This book was compiled to examine and elucidate the general Quranic evidence used in the jurisprudence and law of contracts. It focuses on analyzing the general Quranic sources employed by jurists in deriving rulings for transactions and contracts, which have not been independently and comprehensively studied. Thus, the subject of the book is the “general Quranic evidence for contracts,” and its research objective is to “examine and clarify the various and ambiguous aspects of this evidence.”

As the author acknowledges, the general Quranic evidence discussed here differs from the approach typically taken by jurists in jurisprudential texts on transactions. Instead, the subject and objective of the research are, respectively, the “general rules and principles of contracts” and “articulating their validity, content, and application.”

Necessity of the Research

The author explains the necessity of this research as follows:

Due to the lack of examination of the implications and scope of the relevant Quranic verses, jurists have adopted widely varying positions regarding them, with some jurists even taking multiple stances on a single piece of evidence. Undoubtedly, a comprehensive and independent discussion can clarify many ambiguities surrounding these sources, bring diverse perspectives closer together, and provide a thorough and accessible resource for researchers, professors of advanced and external jurisprudence courses in seminaries and universities, authors, and students. It is surprising that some prominent jurists, such as Sheikh Morteza Ansari, began their Makasib with the hadith on the division of earnings, known as the Tahf al-Uqul hadith, along with a few other weak hadiths, while refraining from presenting a general discussion on Quranic verses that are widely accepted and used in numerous instances. This is particularly notable given that the Tahf al-Uqul hadith is mursal, inconsistent, narrated by meaning, and some of its segments are disregarded by scholars. Moreover, this hadith resembles a jurisprudential text more than a direct narration from an infallible source. Other narrations cited share a similar status. It would have been more appropriate for Sheikh Ansari and other Imami jurists to begin their discussions on the rulings of transactions with a comprehensive reference to these widely accepted sources to achieve the intended objectives.

History, Structure, and Methodology

According to the author, Imami jurists have approached the discussion of transaction rulings in two ways: (1) addressing specific issues and details of transactions (issue by issue), and (2) articulating the general rules and principles of transactions. In both approaches, general religious evidence for transactions has been mentioned in passing or alluded to. However, the author notes that, until the time of this research, no text has comprehensively and independently focused on these sources. Even some contemporary jurists who criticized Sheikh Ansari’s approach in Makasib for starting with the Tahf al-Uqul hadith rather than discussing Quranic verses have themselves only briefly referenced one piece of general transaction evidence, such as the verse: “Do not consume one another’s wealth unjustly, except through trade by mutual consent” (An-Nisa: 29), without providing a comprehensive discussion.

Main Themes and Chapters of the Book

This research addresses five pieces of general Quranic evidence for contracts, with each discussed in a separate chapter and structured into several sections. The study comprises five chapters and sixteen appendices. Notably, the research was initially presented as a two-year advanced jurisprudence course (dars-e kharij) at the Qom Seminary, followed by nearly a decade of further research to reach its current form.

Chapter One: The Verse of Fulfilling Contracts

This chapter covers three main sections:

Section One: Discusses the context of revelation and interpretive sources related to the verse.

Section Two: Analyzes the components of the verse, including the structure of “fulfill” (awfū), the imperative form, the definite article, and the term “contracts” (uqud). It addresses questions such as:

1. Does “fulfill” (awfū) indicate an obligatory ruling (i.e., the obligation to fulfill the contract’s requirements), a situational ruling (i.e., the binding nature of transactions), or both?

2. What is the meaning of “contract” (uqd), and how does it differ from “covenant” (ahd) and “promise” (wa’d)?

3. Does the term “contract” apply to transactions concluded through mutual exchange (mu’atat) that lack a formal legal formula at the time of establishment, as well as to pre-contractual agreements (muqawalat) upon which contracts are based? How does this apply to unilateral obligations (iqa’at) and binding offers (ijabat)? Can this verse be used to derive rulings for these legal phenomena?

Section Three: Determines the scope and extent of the verse, addressing questions such as:

1. Do contracts established after the verse’s revelation and the legislative era fall within its scope, or are they excluded, making reliance on this verse for such contracts invalid?

2. Can the verse be used in cases of doubt to establish the validity of contracts lacking probable conditions or containing probable prohibitions, or is it limited to contracts meeting all religious conditions?

3. Do permissible contracts, such as agency (wakala) or loan (ariya), fall within the verse’s scope, or is it limited to binding contracts?

4. Do contracts that meet religious conditions after their establishment, such as pledge (rahn) or unauthorized (fuduli) contracts after approval by the pledgee or owner, fall within the verse’s scope?

5. Do contracts like oaths of allegiance (bay’a) or elections (e.g., parliamentary or presidential representation) fall within the verse’s scope?

Chapter Two: The Verse Prohibiting Unjust Consumption of Wealth and Validating Trade by Mutual Consent

This chapter covers four main sections:

Section One: Discusses the recitation, syntax, interpretive narrations, and scholars’ opinions regarding the verse.

Section Two: Examines the verse’s components (conceptual meanings) and its composite structure (assertive meaning). It discusses the verse’s implications for liability, the religious criteria for invalidating transactions, and the relationship between unjust consumption and frivolous transactions.

Section Three: Analyzes the scope of the verse’s implications, its evidential and independent utility in deriving rulings, and its role in resolving doubts and uncertainties (jurisprudential doubts).

Section Four: Addresses the application of the verse’s exceptions and exempted elements to certain controversial or debated cases.

Chapter Three: The Verse Permitting Sale and Prohibiting Usury

This chapter includes the following discussions:

1. Is the segment “And Allah has permitted sale and prohibited usury” a direct statement from God, or does it continue the speech of those who opposed separating the rulings of sale and usury?

2. Does the verse aim to establish legislation (permitting sale and prohibiting usury), or had the legislation already been established, with this statement merely responding to unwarranted objections regarding the difference between the rulings of sale and usury?

3. What are the conceptual and assertive implications of “And Allah has permitted sale and prohibited usury”? This includes five sub-discussions: a. Does the verse solely indicate an obligatory ruling, a situational/legal ruling, both collectively, both comprehensively, or both obligation and situation? b. What is the meaning of “sale” (bay’) in the verse? Is it the cause, instrument, effect, or none of these? c. What is the meaning of “usury” (riba)? Is it the excess itself or usurious transactions? d. Does the verse address the prohibition of transactional usury, loan-based usury, or both? e. Does the verse prohibit usury absolutely or only excessive usury with high interest rates?

4. The scope of the verse, including two sub-discussions: a. Its applicability to contracts established after the legislative era. b. What is meant by “sale” (bay’)? Is it a customary sale or one meeting all religious conditions? Is reliance on the verse valid in cases of doubt?

5. Discussion of certain applications and their affirmation or negation.

Chapter Four: The Verse Prohibiting Cooperation in Sin and Aggression

This chapter includes the following discussions:

1. Analysis of the verse’s components (la, ta’awun, ithm, udwan) and its assertive meaning.

2. Does the verse establish a religious ruling, or does it express a general objective of the Sharia without implying a specific ruling that can be used to establish a Sharia proposition? If the former, does it indicate only an obligatory ruling or also guide toward the situational invalidity of transactions?

3. How does the verse relate to concepts like “blocking the means to the prohibited” (sadd al-dhara’i) and “prohibition of the prelude to the forbidden”? Can the verse, if it implies the prohibition of cooperation in sin and aggression, be used to establish these concepts?

4. What is the relationship between the verse and the rule of obligation (ilzam), supportive or aligned texts, the rule of control (tasallut), and texts like “Fulfill your contracts” or evidence validating contracts? Is the verse’s content incompatible with these rules and texts? If so, should the verse’s content take precedence, or vice versa?

5. Examination of certain applications of the verse.

Chapter Five: The Verse of Negating Dominion

This chapter examines the following:

1. Analysis of the verse’s components (lan, yaj’al, li, kafirin, ala, mu’minin, sabil) and its assertive meaning.

2. Can the concepts of “disbelievers” (kafirin) and “believers” (mu’minin) in the verse be generalized to negate dominion beyond the verse’s specific context?

3. Who determines the presence or absence of “dominion” (sabil)? Do time and place influence its realization? What contemporary realities constitute or facilitate dominion? In what forms is dominion realized? Does accepting international treaties, covenants, or laws in non-Islamic countries constitute negative dominion?

4. What is the relationship between the verse (and the rule of negating dominion) and other evidence establishing rulings? Is negating dominion subject to exceptions, or is it absolute? What is the ruling if dominion conflicts with accepted treaties?

5. What is the status of the rule of negating dominion in Iranian and other countries’ laws?

Appendices

Appendix 1: Criteria for contract formation in Iranian civil law and other legal systems.

Appendix 2: Positional generality and its precedence over practical principles, including:

1. The necessity of considering positional generality in transactions.

2. The precedence of positional generality over practical principles in transactions.

Appendix 3: The principle of bindingness and its application in jurisprudential doubts, including:

1. The religious and jurisprudential status of the principle of bindingness.

2. The principle of bindingness in Iranian and other countries’ laws.

3. The principle of bindingness in various types of jurisprudential doubts.

Appendix 4: Conceptual analysis of consent (rida) and intention (qasd) and their distinction.

Appendix 5: Unjust and baseless enrichment compared to unjust consumption of wealth in Iranian legal systems:

1. The nature of the rule of unjust enrichment.

2. The basis of the rule of unjust enrichment.

3. Unjust consumption of wealth in the law.

4. Elements of unjust enrichment compared to unjust consumption of wealth.

Appendix 6: The apparent generality of verses and hadiths expressing general Sharia principles, including:

1. Exploration of opinions, practices, and critiques: a. Denial opinion. b. Affirmation opinion. c. Critique.

2. Research and articulation of the preferred opinion.

Appendix 7: Whether contract titles in Sharia are exclusive or non-exclusive, including:

1. Examination of narrations, jurisprudential texts, and practices.

2. Research.

Appendix 8: Jurisprudential examination of goodwill (serqofli), including:

1. Exploration of jurisprudential texts.

2. Critique and research.

3. Jurisprudential issues with goodwill and solutions: a. The subject of sale being a benefit in goodwill. b. Purchasing a benefit by a tenant despite being the owner. c. Issues with transferring the subject of sale in some goodwill cases.

Appendix 9: Buying and selling banknotes and similar items.

Appendix 10: The role of alternative elements in concepts.

Appendix 11: Tracing the motivations behind the issuance of religious evidence.

Appendix 12: Unsuccessful defense of validating transactions labeled as “cooperation in sin.”

Appendix 13: Cooperation in sin and aggression in Iranian legal systems.

Appendix 14: Reliance on Quranic verses without considering their context.

Appendix 15: The rule of negating dominion beyond the scope of the negating dominion verse.

Appendix 16: The rule of negating dominion in Iranian and other countries’ laws.