نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری، گروه فقه و مبانی حقوق اسلامی، دانشگاه قم، قم، ایران
2 دانشیار، گروه فقه و مبانی حقوق اسلامی، دانشگاه قم، قم، ایران.
3 استادیار، گروه فقه و مبانی حقوق اسلامی، دانشگاه قم، قم، ایران.
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
One of the approaches proposed in the laws of Islamic countries regarding the validity of the istisnaa contract is its compliance with one of the contracts, namely the contract of maqawala. In this regard, the main question of the current research is whether it is possible to apply the Istisna contract to the contract of agreement or not? By taking advantage of library studies and civil laws of Islamic countries and adopting a descriptive-analytical approach, the possibility of applying the Istisna contract to the contract in a state of the contract where the manufacturer, in addition to the commitment to manufacture the goods, also provides the raw materials himself, was evaluated positively. Some also apply the absoluteness of Istisnaa contract to contract and believe that Istisnaa is a contract with artisans to do something. The defects of this adaptation are that this contract is a rental contract in case the required materials are provided by the proposer and the generality of the contract is for Istisnaa due to the inclusion of services along with industrial products, while the subject of Istisnaa is only industrial products. The third theory, based on the rule that considers the subsidiary to be subordinate to the principal, determines the type of contract according to the ratio of the price of the materials used to the price of the performed action; If the work is the original, the material follows it and the contract is concluded, and if the material is the original, the action is subordinate to it and the contract is concluded.
کلیدواژه‌ها [English]
)