The General Theory of Debts in the Islamic Law and its Comparison with the Western Law
Abstract Debt, unlike the western law, is considered as a quite independent concept from “obligation” in the Islamic law and is regarded essentially as a kind of intangible personal property which has the characteristics of ownership and is a species of Ein(thing). The conceptual application of this...
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| Format: | Article |
| Language: | fas |
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University of Qom
2015-12-01
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| Series: | پژوهش تطبیقی حقوق اسلام و غرب |
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| Online Access: | https://csiw.qom.ac.ir/article_862_b1f0c96fed2f0249bde0a1f7c13ebb20.pdf |
| _version_ | 1797233113270583296 |
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| author | Nasrollah Jafari Khosroabadi |
| author_facet | Nasrollah Jafari Khosroabadi |
| author_sort | Nasrollah Jafari Khosroabadi |
| collection | DOAJ |
| description | Abstract Debt, unlike the western law, is considered as a quite independent concept from “obligation” in the Islamic law and is regarded essentially as a kind of intangible personal property which has the characteristics of ownership and is a species of Ein(thing). The conceptual application of this legal institution in the contract and tort law is more extensive than the "obligation" concept. Due to this institution, Nominated contracts such as sale, rent, loan, and guarantee contract which are regarded as promissory contracts in the western law which merely cause obligations, are often considered as possessory in the Islamic law with a different effects. Also in tort law, the relationship between the person suffering the loss and the person causing the loss is not mainly only a personal promissory relationship but injured person is the owner of the equivalent or the value of the property and is its creditor of the tortfeasor and he, as any owner, has full legal control over this property. Thus it, considering the vast application of the debt in various domains of civil law as well as the quite independent and distinguished nature of it from obligation institution, can be suggested a comprehensive theory named “the general theory of debts that is a regulated and coordinated set of legal principles, rules, and concepts including concept, essence, subject, sources, the provisos, effects of debt and causes of debt discharging and fulfilling. This study is an introduction to this theory and represents the necessity of suggesting such theory. It should be noted that this theory which is perfectly consistent with the concepts of Islamic law, is in conflict with the western theory of obligations. |
| first_indexed | 2024-04-24T16:11:00Z |
| format | Article |
| id | doaj.art-5e3039b671b34595a1b702c15f6c472b |
| institution | Directory Open Access Journal |
| issn | 2476-4213 2476-4221 |
| language | fas |
| last_indexed | 2024-04-24T16:11:00Z |
| publishDate | 2015-12-01 |
| publisher | University of Qom |
| record_format | Article |
| series | پژوهش تطبیقی حقوق اسلام و غرب |
| spelling | doaj.art-5e3039b671b34595a1b702c15f6c472b2024-03-31T19:05:12ZfasUniversity of Qomپژوهش تطبیقی حقوق اسلام و غرب2476-42132476-42212015-12-012411810.22091/csiw.2017.862862The General Theory of Debts in the Islamic Law and its Comparison with the Western LawNasrollah Jafari Khosroabadi0استادیار گروه فقه و مبانی حقوق اسلامی دانشگاه آیت الله حائری میبدAbstract Debt, unlike the western law, is considered as a quite independent concept from “obligation” in the Islamic law and is regarded essentially as a kind of intangible personal property which has the characteristics of ownership and is a species of Ein(thing). The conceptual application of this legal institution in the contract and tort law is more extensive than the "obligation" concept. Due to this institution, Nominated contracts such as sale, rent, loan, and guarantee contract which are regarded as promissory contracts in the western law which merely cause obligations, are often considered as possessory in the Islamic law with a different effects. Also in tort law, the relationship between the person suffering the loss and the person causing the loss is not mainly only a personal promissory relationship but injured person is the owner of the equivalent or the value of the property and is its creditor of the tortfeasor and he, as any owner, has full legal control over this property. Thus it, considering the vast application of the debt in various domains of civil law as well as the quite independent and distinguished nature of it from obligation institution, can be suggested a comprehensive theory named “the general theory of debts that is a regulated and coordinated set of legal principles, rules, and concepts including concept, essence, subject, sources, the provisos, effects of debt and causes of debt discharging and fulfilling. This study is an introduction to this theory and represents the necessity of suggesting such theory. It should be noted that this theory which is perfectly consistent with the concepts of Islamic law, is in conflict with the western theory of obligations.https://csiw.qom.ac.ir/article_862_b1f0c96fed2f0249bde0a1f7c13ebb20.pdfdebtsobligationsgeneral debt theorycontract lawobligation debt |
| spellingShingle | Nasrollah Jafari Khosroabadi The General Theory of Debts in the Islamic Law and its Comparison with the Western Law پژوهش تطبیقی حقوق اسلام و غرب debts obligations general debt theory contract law obligation debt |
| title | The General Theory of Debts in the Islamic Law and its Comparison with the Western Law |
| title_full | The General Theory of Debts in the Islamic Law and its Comparison with the Western Law |
| title_fullStr | The General Theory of Debts in the Islamic Law and its Comparison with the Western Law |
| title_full_unstemmed | The General Theory of Debts in the Islamic Law and its Comparison with the Western Law |
| title_short | The General Theory of Debts in the Islamic Law and its Comparison with the Western Law |
| title_sort | general theory of debts in the islamic law and its comparison with the western law |
| topic | debts obligations general debt theory contract law obligation debt |
| url | https://csiw.qom.ac.ir/article_862_b1f0c96fed2f0249bde0a1f7c13ebb20.pdf |
| work_keys_str_mv | AT nasrollahjafarikhosroabadi thegeneraltheoryofdebtsintheislamiclawanditscomparisonwiththewesternlaw AT nasrollahjafarikhosroabadi generaltheoryofdebtsintheislamiclawanditscomparisonwiththewesternlaw |