Investigating the criteria for distinguishing the nature of contracts and its implications on the jurisprudential evaluation of financial market contracts
Quarterly Journal of Securities Exchange

Quarterly Journal of Securities Exchange

Investigating the criteria for distinguishing the nature of contracts and its implications on the jurisprudential evaluation of financial market contracts

Document Type : Original Article

Author
Assistant Professor, Department of Economics, Faculty of Economics, Mofid University, Qom, Iran.
Abstract
We see the creation of new contracts in the financial markets. The first question that arises in the jurisprudential examination of these contracts is whether the invented contract is really a new contract or an example of conventional contracts with minor changes. And basically, what is the criterion for judging the nature of a contract and distinguishing between different contracts? This issue has not been explicitly discussed in the words of the previous jurists, but from some of their fatwas, four views can be counted in this regard: 1) Differentiation of contracts based on the contract words; 2) Differentiation of contracts based on the customary understanding of that contract 3) Differentiation Contracts based on the intention of the parties from that contract 4) Differentiation of contracts based on the function of the transaction. In this article, by examining the evidence of these statements, the fourth statement is accepted as the criterion for determining the nature of a contract. Then some implications of this point of view are enumerated in the jurisprudential review of contracts and capital market instruments. The most important effect of this point of view the domain of the use of sharia remedies, the domain of the rule of conditions and the method of jurisprudence evaluation of new contracts.
Keywords
Subjects

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