Jurisprudential and legal adaptation of the Istisna contract in Libyan civil law
Abstract
The Istisna'a contract is of significant importance due to its use in Islamic banks, and it is essential to establish legal controls for its integrity. The problem of the study is summarized in finding a legal way out for the Istisna’a contract in light of the difference in ideas among jurists between those who permitted this contract and those who dispensed with it in other similar contracts, and clarifying the position of the Libyan legislator on the Istisna’a contract and how he was able to formulate it in Libyan civil law. This study aims to: 1- Explain Istisna’a in language and terminology and in Libyan law? 2- Explain its legitimacy according to jurists and Libyan civil law? 3- How does Libyan law define the Istisna’a contract and what is the difference between it and some similar contracts? The researcher used the inductive approach: by identifying the concept of Istisna’a in language and terminology, by inducting it from collecting scientific material from jurisprudential and legal books. The deductive approach: meaning deducing the general results of the study by taking rulings and opinions from the jurisprudential schools and Libyan civil law jurists. Research Sections The first topic: The concept of Istisna’ The first requirement: Istisna’ in language and Islamic law The second requirement: The legitimacy of the Istisna’ contract according to jurists and in Libyan law The third requirement: The classification of the Istisna’ contract in Libyan law. The most important results of the research are that the Istisna’a contract is not permissible according to the majority of scholars due to the lack of explicit evidence in the Qur’an and Sunnah. The Hanafis disagreed with them and said that it is permissible due to people’s need for it. The Libyan legislator also spoke about the contract of contracting, which is similar in some of its pillars and conditions to the Istisna’a contract. Summary of the research: The Hanafis permitted the Istisna’a contract due to people’s need for it, as this contract was used in all ages without anyone objecting to it, and there is no legal impediment to this contract. The Libyan legislator also spoke in the civil law about the article contract that people deal with in this age.
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