Change of Contracts and Their Reshaping and the Impacts of the Emergencies – Comparative Study
Prof. Abdul hammed Mahmud Albaly
Professor of Islamic law in Kuwait international law School
Abstract:
This research is based on Pragmatic methodology of Sounding in Categorizing and rooting a certain question and the real total or partial comparison; the total comparison that extends to the origins of the questions, and the partial one that includes its comprehensive branches in dealing with a practical problem related to the essences of the transactions –the financial contracts as named by Al- Minhagy in his book “ Essences of Contracts” especially what is related to these contracts including the names and descriptions; these contracts are changed into other contracts for many considerations which may be dictated by the judicial discretion, or the state of the contract of not fulfilling its conditions, or having been effect by the emergencies, the sudden cases and the legal necessities, or considering the purpose of its parties.Thus, we can prove the diversification of the change cases in Islamic jurisprudence.
This research also depends on the methodology of purposinism and rooting that is, connecting between the purposes of jurisprudence and Inferencing – not transcribing – research questions, and also achieving the connection with the origin and the age. This means the connection with the origins and the legal sources, and their appliance in formulating and establishing the detailed decisions in a way that leads to upgrading and renewing the theory of contracts change in Islamic jurisprudence and to prove its origin, eligibility and worthiness, and to determine the aspects of the real Comprehensive comparison- not the total general one- between the two systems: the jurisprudence in Islamic sharia and other objective systems, on the basis of the substantive methodology which is based on the integrated system: of the legal origins, total rules of jurisprudence and the partial detailed controls of jurisprudence, all these factors reflect the specificity of the jurisprudence industry in Islamic Sharia including the specificity of its used terms. The researcher has intended to use all these data that is described in his research, while we are about to establish another theory of the change of contracts in the great Islamic jurisprudence in the origins of the jurisprudence industry and its usage in the methodology of this important and accurate research to determine the features and descriptions of renewal and in the way of what has mentioned in terms of rooting and real comparison.