نوع مقاله : مقاله پژوهشی
نویسنده
عضو هیئت علمی گروه حقوق خصوصی دانشگده حقوق دانشگاه قم، قم، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The circulation and flow of wealth is among the essential requirements for economic growth, particularly in banking Mudaraba, which is distinct from civil Mudaraba in two key aspects: First, the necessity of a bank as an intermediary that collects small deposits from investors and then allocates them to an agent for trade. Second, the binding nature of banking Mudaraba, the rationale of which is to ensure profitability.
The methodology of this paper is initially descriptive, followed by an analysis of findings and their potential applicability within the Iranian legal system. The Civil Code, in agreement with the majority of jurists, explicitly permits Mudaraba. However, given the differences between banking Mudaraba and civil Mudaraba, as well as the potential legal inconsistencies arising from applying the nature and effects of civil Mudaraba to banking contracts, the banking system has adopted measures to strengthen this contract—such as setting a specific time frame for Mudaraba, trading specified goods, and including conditions like the prohibition of unilateral termination and waiving the right of recourse. In the author’s view, such measures are unnecessary, as the justifications for permitting banking Mudaraba—such as the insufficiency of arguments for its binding nature due to its permissive (non-mandatory) structure, its composite nature combining agency (Wakala) and partnership (Shirka), the customary practice of rational actors (Binā’ al-‘Uqalā’), and juristic consensus (Ijma‘)—are not entirely conclusive. Considering the inherent nature of banking Mudaraba, its binding constraints, the agent’s control over profits, and the mutual obligations within the contract, such an agreement should be classified as binding (Lāzim) and fall under the category of contractual (ʿAhdi) agreements.
کلیدواژهها [English]