| الوصف: |
In the face of the desire to re-establish the sharīca in commercial activity, study of new perspectives in fiqh is a crucial part of modern Islamic legal thought. This study deals with hawādith tāri'a, one of the new legal terms in fiqh which is concerned with the status of a contract in commercial transactions. Despite the fact that hawādith tāri'a is usually considered in Western sources as coming under the law of contract, this study is confined to the Islamic legal category of commercial transactions. Therefore, this study begins by considering the law of contract and its connection with the Book of Sales. As a theory in contemporary Islamic legal circles, hawādith tāri'a addresses exceptional circumstances in commercial contracts which render the performance of the contractual obligation onerous. This study is concerned with understanding the sources of the theory, particularly the hadīths of the Prophet (peace the upon him) dealing with wadc al-jawā'ih, where the foundation of the theory can be seen to have its origins. The significance of wadc al-jawā'ih, a classical doctrine regarding calamities that occur to crops after the completion of a sales contract, is examined at length, together with the classical legal texts on the sale of fruit before its ripeness is evident (bayc al-thimār qabla an yabduwa salāhuhā). Also, the doctrine of cudhr, which concerns being excused in the performance of contractual liability in hiring and leasing, is studied. From all of the above, the classical underpinnings of the concepts of hawādith tāri'a become abundant evident. |
