A Comparative Examination of Transferable Trust Contracts in General and Imamieh Jurisprudence and Current Laws

Abstract

Transferable trust contracts, entered into to secure financial claims and obligations, fall under the category of secondary contracts. During the creation of a trust contract, the debt must be in the possession of the debtor. However, there is a divergence of opinions regarding whether the debt must be fixed in the possession of the debtor or if its creation is sufficient. Some Islamic jurists consider contracts where the debt is not the result of a specific transaction as void, arguing that the substance of the debt has not been established in the possession of the debtor. Others, however, citing the Quranic verse "And for one who comes with a burdened camel and We were, over him, observers," do not find sufficient evidence for the nullity of such contracts. Therefore, the presence of the primary cause of the debt during the formation of trust contracts (guarantee and transfer) is that the primary cause of the debt exists but has not yet materialized. If no obstacle arises, the primary debt is realized. This article examines the views of general and Imamieh jurisprudence, as well as current laws, on the validity of transferable trust contracts. By analyzing the opinions of various scholars and jurists in this field, we contribute to the legal literature on the subject of transferable trust contracts.