نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری، گروه فقه و مبانی حقوق اسلامی، واحد قم، دانشگاه آزاد اسلامی، قم. ایران.
2 استادیار، گروه فقه و مبانی حقوق اسلامی، واحد قم، دانشگاه آزاد اسلامی، قم. ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The bank ju‘alah contract occupies a prominent position in the interest-free banking system due to its flexibility in financing and service provision. Nevertheless, its implementation through three common practices—namely, the collection of advance payments, the charging of differentials based on the time value of money, and the imposition of fixed-percentage late payment penalties—raises significant challenges in light of the principles of Imamiya jurisprudence and the objectives of the Law for Usury-Free Banking Operations (approved on 30 August 1983, as subsequently amended). This situation has led to the emergence of concerns regarding the usurious nature of ju‘alah contracts. Using a descriptive-analytical method and drawing upon authoritative jurisprudential and legal sources, statutory regulations, and sample contractual forms, this study critically evaluates the foundations and implications of these practices. The findings indicate that collecting advance payments prior to the completion of the contracted act grants ownership rights to the agent before the realization of the intended result, thereby transforming the arrangement into a loan conditioned upon profit. The differential arising from the distinction between cash and deferred repayment, when based solely on the passage of time, bears a complete resemblance to riba al-nasi’ah (deferred usury). Furthermore, late payment penalties, by disregarding the extent of actual damages and being credited to the bank’s income account, effectively function as bank interest. The study concludes by emphasizing the necessity of revising relevant regulations, particularly Article 70 of the Executive Regulation of Chapter Three of the Law for Usury-Free Banking Operations (Banking Facilities Regulation), approved on 5 January 1984. It also advocates designing contracts based on ujrat al-mithl (reasonable compensation for services rendered) and restricting late payment penalties to judicial determinations or allocations for public-benefit purposes. Such reforms would facilitate the elimination of usury-related concerns, preserve the jurisprudential legitimacy of banking practices, and strengthen public confidence in interest-free banking.
کلیدواژهها [English]
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