بحوث مؤتمر المصارف الإسلامية بين الواقع والمأمول ج 40

أ.د. عبد الحميد محمود البعلي مؤتمر المصارف الإسلامية  بين الواقع والممول  Contract transformation in Fiqh and law A Comparative study The importance of the study lies in the fact that it elucidates the capacity of sharia compliant contract to respond to the sharia compliant practical interest and demands. This preliminary study proved that - on the basis that assimilation has priority over accommodation-- contract transformation is a well established fiqh methodology proved in Quran, linguistics and among fuqaha. Contract transformation in fiqh means changing/ altering/ modifying from one contract to another, and the term Inkilab al akd (transformation/ alteration of the contract) is the most widely accepted among fukaha in the past. Transformation regulations differ according to the situation, i.e: * The transformation of «al wasf» or « al –haala» including many varieties such as the transformation of al wakala al sahiha to wakala and to sharaka and to invalid ijara * The transformation of the contract whose terms have not been fulfilled to another, examples include: 1) The transformation of the grant with compensation condition contract to a sale contract with all the terms and conditions associated with a sale contract among some Fuqaha 2) The transformation of the suspended/cancelled contract to a valid one once it has been approved such as the «officious sale» (al Foudoly sale) among some Fuqaha 3) The commission merchant/agent becomes officious when he/she transgresses the limits of his/her agency