نوع مقاله : مقاله پژوهشی
1 استادیار گروه حقوق مؤسسه آموزش عالی المهدی مهر اصفهان
2 استادیار گروه حقوق دانشکده علوم اداری و اقتصاد دانشگاه اصفهان
3 دانشیار گروه حقوق دانشکده علوم اداری و اقتصاد دانشگاه اصفهان
4 دانشجوی دکتری فقه و مبانی حقوق اسلامی دانشگاه مذاهب اسلامی
عنوان مقاله [English]
Jurisprudents of different Islamic schools of thought, according to the type and combination of raised capital, have divided the types of partnership into four categories: ‘Inan, A‘mal, Mufawadha and Wujuh. Regarding the definition, effects and rulings of these kinds of partnerships, there are fundamental differences of opinion among the jurists of different Islamic schools. Due to the difference of jurisprudential and legal views and the silence of the civil law, the scope of these differences of opinion has also been extended to the authenticity or inauthenticity of Mufawadhah partnership. Those in favor of the correctness of the Mufawadhah partnership insist on reasons such as the existence of some hadiths, silent consensus, the similarity of the main nature of this kind of partnership with the two legally permissible contracts of sponsorship and representation, and the emphasis of the Islamic religion on participation and cooperation. On the other hand, the opponents of the validity of the Mufawadhah partnership have pointed to reasons such as the absence of an explicit Shariah reason about the validity of this company, arbitrary and consensus. In this article, with a comparative look at different Islamic schools of thought and with an emphasis on the jurisprudence books of Imami jurists and with the benefit of a descriptive analytical method, after defining the Mufawadhah partnership, by analyzing the reasons for and against the validity of this kind of partnership, with an emphasis on the answers, the solution and the violation that is given for the reasons of the opponents and supporters of the validity of the Mufawadhah partnership, in the end, the result is obtained that according to the silence of the law and despite the opposing opinion of some jurists, according to the opinion of jurists such as Tusi, Shahid Sani And Mofid, participating in negotiation in its famous meaning in Imami jurisprudence and following it according to Article 4 and Article 167 of the Constitution is invalid in the current laws of Iran.