The criterion for determining the nature of usurious sales based on Its utility without direct financial exchange and its impact on usurious transactions. (A comparative jurisprudential study)

Mohammad Masarwa, Abdul Basit; Fakhri Azzam, Hamad

doi:10.21608/aafu.2024.354986

The criterion for determining the nature of usurious sales based on Its utility without direct financial exchange and its impact on usurious transactions. (A comparative jurisprudential study)

Document Type : Original Article

Authors

10.21608/aafu.2024.354986

Abstract

The study aims to illustrate the impact of utility in determining the nature of a sale considered usurious, without direct financial exchange, and its effect on usurious transactions. Scholars have varied in their opinions on this issue, presenting three main perspectives. The first suggests that the balance of utilities and their divergence do not impact determining the nature of the usurious sale, disregarding the equality or differences in utilities. The second viewpoint asserts that the defining factor for the similarity of nature, despite the divergence in purpose, lies in the specific nature and original intention. The third perspective emphasizes that the equality or proximity of utilities is the criterion for usurious money, where the agreement of usurious money's utilities constitutes a unified nature. The study presents some applications of this criterion.
The study concludes that the second opinion, which considers utility in determining the nature of a usurious sale in usurious transactions, unifies the specific nature and original intention. However, when things differ in their intended purpose from their origin, they become a different and independent nature, thus altering their utility and resulting in usury. This aligns with the Hanafi school of thought, differing from others in its approach of leniency versus prohibition.

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