نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
Context & Objective: The Islamic law of transactions (feqh-e moʿāmalāt) rests on a symmetrical balance between rights and obligations, exemplified by the correlativity between entitlement to benefits and bearing liability for loss. Expressed by jurists as man lahu al-ġonm fa-ʿalayhi al-ġorm (he who enjoys the benefit bears the burden) and in traditions as al-Ḫarāj bi-l-Żamān (benefit-risk correlativity, where entitlement to a property's revenue corresponds to bearing the risk of its loss), this rule dictates that whoever legally bears the risk of an asset's destruction is entitled to its generated benefits. However, a fundamental conflict arises when this rule confronts exceptional rules governing talaf-e mabīʿ (destruction of the object of sale) prior to qabż (physical delivery) or during ḫīyār (a contractual option period). In these cases, the buyer legally owns the benefits, yet specific rules impose the loss of the corpus on the seller. This study dissects the internal logic of this conflict across Imami and Sunni jurisprudence to identify the optimal model for resolving the dispute.
Method & Approach: This research employs a doctrinal method and an ejtehādī (independent jurisprudential reasoning) approach to analyze primary texts in Imami and comparative Sunni jurisprudence. First, the study evaluates the epistemological foundations, transmission chains, and lexical scope of the benefit-risk correlativity rule across early and late periods. Next, it delineates the rule's boundaries by distinguishing endorsed contractual risk from coercive non-contractual liability. Finally, it critically evaluates the conceptual frameworks and methodological remedies developed to resolve the conflict between benefit-risk correlativity and the rules governing the destruction of sold goods.
Findings: Genealogical analysis shows that the al-Ḫarāj bi-l-Żamān tradition originated in a Prophetic dispute over a defective slave's wages before fasḫ (contract rescission), transmitted through Sunni chains and appearing in Shiʿi collections only as an unattributed report. While early Imami jurists invoked its apparent generality, later critics rejected its textual authority and argued its definite articles refer specifically to that historical dispute. Whereas Hanafi law restricted ḫarāj to detached non-generated benefits and declared pre-delivery benefits impure for both parties, Imami jurisprudence grounded usufruct entitlement in tabaʿīyat-e namāʾ az malekīyat (subordination of growth and usufruct to ownership), treating pre-delivery benefits as a non-liable trust with the seller, and relied on authentic Shiʿi traditions like al-ġorm ʿalā man akala al-māl (loss falls upon the one who consumes the property). Furthermore, mainstream Imami jurists rejected Abū Ḥanīfah's extension of the rule to ġaṣb (usurpation) and isolated views applying it to ʿoqūd-e fāsedeh (void contracts). Because a usurper's pecuniary liability only actualizes upon destruction and void contracts trigger coercive liability, the rule applies exclusively to żamān-e moʿāmalī-ye momżā (Lawgiver-endorsed transactional liability), while also balancing non-commutative duties in spousal burial expenses, orphan guardianship, war booty, and pledges. To resolve conflicts with destruction rules, temporal fictions like enfesāḫ-e ān-an mā (automatic dissolution an instant before destruction) or voiding the contract ab initio fail by violating permanent contractual causation and dominion over property, while treating dissolution as a mere legal fiction destroys benefit-risk correlativity itself. Similarly, suspending the buyer's ownership during an option period collapses under kašf (retroactive disclosure of ownership) and conflates transactional liability with żamān-e yad (coercive possession liability) and żamān-e taʿabbodī (special statutory liability).
Conclusion: Resolving this conflict requires replacing artificial temporal and ownership fictions with principles of jurisprudence (oṣūl al-feqh) and thematic transformation. Under oṣūlī remedies, specific destruction rules do not create a stable contradiction; rather, they supersede (vorūd) and restrict (taḫṣīṣ) the primary rule of benefit-risk correlativity as a statutory impediment, similar to maqbūż be-sawm (goods taken for pre-purchase inspection). Moreover, the rules exhibit tabāyon-e mowżūʿī (thematic divergence), as seller destruction liability governs the pre-delivery phase while the ḫarāj rule governs post-delivery exploitation. This clash is further narrowed by confining option-period destruction rules to their certain textual core—such as the animal and stipulated options—and excluding seller liability when the buyer delays accepting tendered goods. Ultimately, feqh al-ḥokūmah (governmental jurisprudence) resolves the dispute through thematic transformation, reinterpreting ḫarāj as public taxes and żamān as sovereign obligations, rendering any conflict with private sales destruction rules moot.
واژگان کلیدی English