Abstract

The Similarity of Genus: Is It a Part of Usury of Excess Cause or a Condition?

Ayman Mustafa Hussein Dabbagh

Associate Professor, Faculty of Shari’a, An-Najah National University, Palestine

[email protected]

The research aimed to answer a main question: Is the relationship of the similarity of genus with what so called (Riba al-Fadl) usury of excess a partial relationship or a conditional? The importance of the research stems from the fact that it is a study of a very precise issue from both the jurisprudential and fundamental points of view, which is useful in deepening the understanding of one of the most important topics in the Islamic jurisprudence of financial transactions and the most intractable, which is the subject of usury in sales, and its cause. It is an issue completely overlooked in contemporary researches on usury of sales. This research - within the limits of the researcher's knowledge - is the first research to single out this issue in an independent study. The research followed a descriptive and analytical methodology, where the state of the issue was clarified, and the views of the islamic jurists on it and their arguments were traced, with a study of the fundamental aspects related to that, such as the criterion for distinguishing between the part of the cause and the condition, with discussion and analysis in all of that. The research concluded with results, the most important of which are: a jurisprudential dispute appeared between the Hanafis and the Shafi’is in the second half of the fourth century AH, regarding the relationship of the similarity of genus with usury of excess. The origin of the disagreement is the issue of genus alone, does it forbid deferment? The Hanafis tried to show a jurisprudential relationship between their cause (including the similarity  of the genus) and the the prohibition of usury of excess, which was targeted by many objections, such as that usury of excess is confined to private types of money, and the reasoning of the Hanafis requires that it be generalized in all money. The strength of the objections and the weakness of Hanafi responses to it appeared, and therefore it is more likely that the similarity of genus is a condition for the cause of usury of exess and not a part of it.

Keywords: usury. Cause. Condition. Hanafis. Shafi’is. Jurists. Usury of sales. Riba al-Fadl.Usury of Excess. Usury of deferment. The cause of usury. Apropriatness. Paths of cause.

Title

مجلة البحوث الفقهية المعاصرة

Publisher

مجلة البحوث الفقهية المعاصرة

Publisher Country

Saudi Arabia

Publication Type

Both (Printed and Online)

Volume

35

Year

2023

Pages

439-521