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ZAKİR, EBTİHAL

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    دور الدبوسي في تطور نظرية الفساد في عقود المعاوضات عند الحنفية
    (2024-07-01) ZAKİR, EBTİHAL; Zakir E.
    This article is a study of the theory of "fasād" in contracts according to al-Dabbūsī, who is considered one of the early scholars of Hanafi jurisprudence who integrated usul (principles) and furu (subsidiary issues) in his writings. Al-Dabbūsī made significant advancements in the development of the theory of "fasād". He clearly defined the concept of "fasād" in Islamic jurisprudence and made it a comprehensive term for all types of defects that could potentially impact contracts. With his background in jurisprudence and theology, Al-Dabbūsī established an epistemological framework that serves as the fundamental basis for determining "fasād". He clarified the nature of actions and identified the type of kubh (ugliness) that can lead to "fasād". He also shed light on the concept of the legal existence of contracts, which forms the foundation for the contract's ability to fulfill its rulings. In terms of "fasād" as a legal judgment, al-Dabbūsī established the theory of causality as the basis for deriving contractual rulings. Additionally, he emphasized the principles of separation and fragmentation in contracts, which play a significant role in either eliminating or perpetuating "fasād". Finally, al-Dabbūsī highlighted the role of "fasād" in the origin of contracts, considering it as a weakening factor rather than a lifter factor of the cause of the judgment. This article consists of three sections. The first section provides a comprehensive definition of "fasād" according to al-Dabbūsī. The second section explores al-Dabbūsī's contribution in establishing an epistemological framework for "fasād" in exchange contracts. The final section outlines al-Dabbūsī's significant contribution to the legitimization of judgments regarding "fasād" in contracts. Keywords: Hanafī School, Fasad, al-Dabbūsī, Kubh, Legal (shar’i) existence, Causality.