İSLAM HUKUKUNDA GABĐN VE AKDE ETKĐSÄ

Year 2008, Volume: 10 Issue: 18, 129 - 150, 15.12.2008

Gökhan Atmaca

Abstract

Described in Islamic law as “to be deceived by buying something with a larger pricethan its worth or selling it with a smaller one”, “ğabn” was not considered as a causemaking the consent disabled and the contract invalid (fasid). But it was in questionwhen the consent was disabled or there was an unfair detriment.To decide if there is a “ğabn-ı fahis” in a contract, for the majority of the jurists, thelocal custom regarding that contract is considered as a criteria. But a considerableamount of Hanafi jurists, despite the preferred doctrine is same as the opinion of themajority, accepted the price, that is included in the value fixed by the expert, as “ğabn-ıyasîr” and the price, that is smaller or too much than the value, as “ğabn-ı fahis”.The concept of “tağrîr” is described in Islamic law as “to mislead someone by havinghim formed an incorrect opinion or kept his former incorrect opinion to make himdeclare a will (irada) in favour of you”. For that reason “tağrîr” is considered as a causemaking the consent or the will of the part exposed to it disable. So “tağrîr” makes theannulment of the contract or reduction in the price or even demand for compensationpossible.

Keywords

Gabin, Tağrir

Gabn in Islamic Law and its Effect on Contract

Abstract

Described in Islamic law as “to be deceived by buying something with a larger pricethan its worth or selling it with a smaller one”, “ğabn” was not considered as a causemaking the consent disabled and the contract invalid (fasid). But it was in questionwhen the consent was disabled or there was an unfair detriment.To decide if there is a “ğabn-ı fahis” in a contract, for the majority of the jurists, thelocal custom regarding that contract is considered as a criteria. But a considerableamount of Hanafi jurists, despite the preferred doctrine is same as the opinion of themajority, accepted the price, that is included in the value fixed by the expert, as “ğabn-ıyasîr” and the price, that is smaller or too much than the value, as “ğabn-ı fahis”.The concept of “tağrîr” is described in Islamic law as “to mislead someone by havinghim formed an incorrect opinion or kept his former incorrect opinion to make himdeclare a will (irada) in favour of you”. For that reason “tağrîr” is considered as a causemaking the consent or the will of the part exposed to it disable. So 

Keywords

Gabn, Tagrir