Apartment: A Jurisprudential and Legal Review (Book): Difference between revisions

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 The author points out that in jurisprudential sources, criteria have been proposed for the contributions of the parties in a partnership contract, some of which are not observed in the partnership in construction contract; hence, the examination of these criteria is of importance (p. 32). These criteria are:
-'''Mixing of contributions'''; Relying on evidence such as "Fulfill the contracts" and narrations that have deemed a mere verbal agreement sufficient, Fakhar Tousi does not consider the mixing of contributions as necessary and believes that a partnership contract without mixing (Mazj) is also valid (p. 34).
+* '''Mixing of contributions'''; Relying on evidence such as "Fulfill the contracts" and narrations that have deemed a mere verbal agreement sufficient, Fakhar Tousi does not consider the mixing of contributions as necessary and believes that a partnership contract without mixing (Mazj) is also valid (p. 34).
+* '''Uniformity of contributions'''; The author considers the criterion of partnership to be the indistinguishability of properties from one another, and he applies this to non-uniform properties as well. According to him, differences in price or description exist even in uniform properties and are not an obstacle to the realization of a partnership. Furthermore, the existence of benefit and the possibility of issuing permission in non-uniform properties indicates that the uniformity of contributions is not a necessity (p. 39).
-'''Uniformity of contributions'''; The author considers the criterion of partnership to be the indistinguishability of properties from one another, and he applies this to non-uniform properties as well. According to him, differences in price or description exist even in uniform properties and are not an obstacle to the realization of a partnership. Furthermore, the existence of benefit and the possibility of issuing permission in non-uniform properties indicates that the uniformity of contributions is not a necessity (p. 39).
+* '''Simultaneous delivery of contributions'''; The author does not consider the simultaneity of the delivery of the parties' contributions as necessary and believes that, by accepting the partnership contract, the time and manner of presenting contributions can be specified through the agreement of the parties and the inclusion of conditions. This possibility is justifiable based on the general rules of contracts, similar to what is also seen in a sale contract (Aqd al-Bay') (p. 41).
-'''Simultaneous delivery of contributions'''; The author does not consider the simultaneity of the delivery of the parties' contributions as necessary and believes that, by accepting the partnership contract, the time and manner of presenting contributions can be specified through the agreement of the parties and the inclusion of conditions. This possibility is justifiable based on the general rules of contracts, similar to what is also seen in a sale contract (Aqd al-Bay') (p. 41).
 === Contracting Agreement and Order of Construction ===
 In explaining the subject of contracting, the author raises five possibilities and examines them:
-Building materials; The author rejects this possibility because materials are not the subject of the transaction and the buyer does not intend an independent transaction regarding them (p. 47).
+# Building materials; The author rejects this possibility because materials are not the subject of the transaction and the buyer does not intend an independent transaction regarding them (p. 47).
-Building: In this analysis, the employer buys the apartment with the descriptions provided by the contractor, as a fungible entity on the liability (Kulli fi al-Dhimmah) (p. 47).
+# Building: In this analysis, the employer buys the apartment with the descriptions provided by the contractor, as a fungible entity on the liability (Kulli fi al-Dhimmah) (p. 47).
-Labor in the form of a lease: The subject of contracting is the executive operations of the contractor, the employer acts as the lessee, and the contractor acts as the hired employee (Ajir), and it makes no difference to whom the materials belong; because the principal element is the contractor's labor. The author answers the potential obstacles of this analysis (pp. 49-50) and accepts this possibility (p. 66).
+# Labor in the form of a lease: The subject of contracting is the executive operations of the contractor, the employer acts as the lessee, and the contractor acts as the hired employee (Ajir), and it makes no difference to whom the materials belong; because the principal element is the contractor's labor. The author answers the potential obstacles of this analysis (pp. 49-50) and accepts this possibility (p. 66).
-Various subjects: According to this possibility, determining the subject of contracting depends on the manner of drafting the contract and the status of the contract (p. 53).
+# Various subjects: According to this possibility, determining the subject of contracting depends on the manner of drafting the contract and the status of the contract (p. 53).
-Manufacturing and delivery of goods as an independent contract: This analysis examines contracting outside the framework of sale and lease and as an independent contract; a perspective that has proponents among some contemporary jurists (p. 56).
+# Manufacturing and delivery of goods as an independent contract: This analysis examines contracting outside the framework of sale and lease and as an independent contract; a perspective that has proponents among some contemporary jurists (p. 56).
 === Pre-Sale of Apartments and the Examination of Its Criteria ===
 In the author's opinion, the pre-sale contract of an apartment differs from partnership and contracting contracts in the composition of the parties to the contract; in partnership and contracting contracts, one is the owner of the land and building and the other is the builder, but in a pre-sale, the non-owner buyer is the contracting party with the builder. According to him, the primary nature of this contract is the pre-sale of apartments under construction, which is known in jurisprudence under the title of "forward sale" (Salaf or Salam) (p. 67). He proceeds to apply the criteria of pre-sale regarding the pre-sale of apartments under construction:
-'''Permission of partners'''; The author emphasizes that in the pre-sale of apartments with joint ownership, the permission of other partners is necessary, and this requirement is the same across all types of partnerships (p. 71).
+* '''Permission of partners'''; The author emphasizes that in the pre-sale of apartments with joint ownership, the permission of other partners is necessary, and this requirement is the same across all types of partnerships (p. 71).
+* '''The transaction object being known'''; In a forward sale (Bay' al-Salaf), the seller must clearly state to the buyer the complete specifications of the apartment, consumable materials, decorations, and other factors affecting the price (pp. 74-76).
-'''The transaction object being known'''; In a forward sale (Bay' al-Salaf), the seller must clearly state to the buyer the complete specifications of the apartment, consumable materials, decorations, and other factors affecting the price (pp. 74-76).
+* '''Receiving the price of the transaction object in the contract meeting'''; Although receiving the price of the goods in the contract meeting is considered one of the conditions of a forward sale (p. 76), the author considers this condition to lack a specific narrational basis, and views the jurists' reasons for proving it as based on personal reasoning (Ijtihad) and subject to criticism. He responds to the objections of the opponents and declares a forward sale without the immediate possession (Qabdh) of the price in the contract meeting to be valid (pp. 82-83).
+* '''The sold object being fungible (Kulli)'''; The author states the view of jurists regarding the necessity of the sold object (Mabi') being fungible (the invalidity of selling a specific entity in the form of a forward sale), but he does not consider this condition necessary, provided that the parties possess customary certainty regarding the possibility of delivery at the stipulated time (pp. 85-89).
-'''Receiving the price of the transaction object in the contract meeting'''; Although receiving the price of the goods in the contract meeting is considered one of the conditions of a forward sale (p. 76), the author considers this condition to lack a specific narrational basis, and views the jurists' reasons for proving it as based on personal reasoning (Ijtihad) and subject to criticism. He responds to the objections of the opponents and declares a forward sale without the immediate possession (Qabdh) of the price in the contract meeting to be valid (pp. 82-83).
-'''The sold object being fungible (Kulli)'''; The author states the view of jurists regarding the necessity of the sold object (Mabi') being fungible (the invalidity of selling a specific entity in the form of a forward sale), but he does not consider this condition necessary, provided that the parties possess customary certainty regarding the possibility of delivery at the stipulated time (pp. 85-89).
 == Examination of Jurisprudential and Legal Rulings in the Construction Phase of the Apartment ==
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 [[Category:Jurisprudence of Urban Development Books]]
 [[Category:Javad Fakhar Tousi Books]]
+[[fa:آپارتمان: بررسی فقهی و حقوقی (کتاب)]]