Explaining the concept of risk in Islamic legal system with emphasis on Gharar and gamble conecpts

Document Type : Research Article

Authors

1 professor at feqh and law research center, Islamic culture and thought research center, Tehran, Iran

2 Phd candidate, private law department, Imam Sadiq a.s University. Tehran, Iran

Abstract

Risk is a concept considered in different legal and economic systems and each has ordained different policies about it. Obviously, some types of risky actions are not accepted by all these systems especially by Islamic ones.
Due to the presence of risk more or less in most of the contracts, it is essential to explain the concept and position of this element to distinct between the legal and illegal ones. What can simplify this explanation is enumerating and studying the elements of contracts accompanying the risk element, finding the relationship between the identified elements and the risk element, in order to be able to provide an accurate categorization of these contracts based on this element.
The result of elemental studying of these contracts which are gamble, betting, Gharar, probable and chance contracts, is a hierarchical definition of risk element. Based on this definition, the lowest level of risk is attributed to right contracts and highest level is defined in gamble and betting (gambling contracts). Between these two levels is the risk which creates Gharar. Other cases are placed in one of the triple levels based on the associated risk.
Therefore, in Islamic legal and economic systems there are three different levels of risk and each level has its especial rules and consequent legislator exposure would be different. So that, In contrast to the maximum protection from right contracts, in highest level of risk not only there is no protection but also some cases (gamble) would be a criminal offense.

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History

  • Receive Date: 06 November 2017
  • Revise Date: 20 January 2018
  • Accept Date: 09 February 2018

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