The Extent of the Ijarah Contract’s Applicability to Common Transactions in Islamic Jurisprudence and the Contact law of Islamic Emirate of Afghanistan

مدى استيعاب عقد الإجارة للمعاملات المتداولة في الفقه الإسلامي وقانون العقود في الإمارة الإسلامية بأفغانستان

Abstract

Jurists have been divided into two views regarding the legitimacy or illegitimacy of the lease contract (Ijārah). The majority of jurists hold that the contract of lease is legitimate based on the Qur’an, the Sunnah, and consensus (Ijmāʿ). However, Abū Bakr al-Aṣamm and his followers maintain that it is impermissible, relying on rational arguments. Subsequently, although the majority agree on the legitimacy of the lease, they differ regarding the extent to which this contract encompasses the transactions commonly practiced among people, namely, whether the contract of lease has the capacity to include all such transactions or not. Accordingly, the researcher in this article has sought to present the opinions of jurists concerning the legitimacy and illegitimacy of lease, together with the evidence of both groups, to give preference to the view of the majority over that of Abū Bakr al-Aṣamm and his supporters, and to explain the disagreement among the majority regarding the possibility of the contract of lease encompassing certain transactions commonly practiced among people. This study examines the subject through an analytical approach and clarifies the juristic opinions related to it. It is worth noting that the researcher has employed the analytical method in writing this article and has strengthened the findings by consulting authoritative juristic sources and making use of reliable academic studies. The results of the research indicate that the contract of lease is legitimate and has the capacity to encompass all lawful transactions commonly practiced among people, and that evidence from the Qur’an, the Sunnah, consensus, reason, and empirical reality testify to this conclusion.