Özet:

The subject of this article is related to the theory of fasād according to Ḥanafī law in general and the theory of tashīh al-'ukūd in particular. As a matter of fact, a voidable contract is a type of contracts that are legitimate in essence but illegitimate in certain attributes. The underlying reason for the Ḥanafī jurists' tripartite classification of contracts as legitimate-voidable-void is based on their understanding of the Divine speech. While the other three schools of law associate the Shāri’s prohibition with the essence of the acts of the worshippers and consider the acts subject to the prohibition to be directly invalid (void), the Ḥanafīs, in some cases, attribute the divine prohibition to the secondary qualifications of the acts and characterize them as voidable. Therefore, according to the Ḥanafīs, financial transactions that fall into the category of voidable may not be canceled fundamentally, but may be validated under certain conditions. In this article, we focus on the types of the voidable elements and the conditions for the elimination of them, which have not been studied before in the context of rectification of the contracts. There are many studies on the subject, and the importance of this research is manifested in establishing the framework of strong and weak fasād, identifying the essential (aṣlī) and incidental fasād (ṭāri’) and related disputes, raising the issue of the transitivity of fasād, and revealing the conditions under which the existing voidable contract is converted into a valid contract. It is also important in terms of correcting the erroneous perception that the fasād is a merely structural (worldly) status of the contract and does not impose a sin on the parties in the hereafter. Our article is a theoretical study. While collecting the data, we tried to go down to the original sources as much as possible. While analyzing the topics, almost all contemporary studies on the theory have been examined. As a matter of fact, while creating the framework of the article, we have tried to emphasize the points that contemporary studies have not touched upon. During the study, it has been focused on using a descriptive and analytical style as much as possible. The concept of ṣulb al-‘aqd (the essence of the contract) is very important in converting a voidable contract into a valid one. This is because in cases where the corruption is in the essence of the contract, there is no possibility of the rectification. It should be noted that the Ḥanafī jurists do not mean by ṣulb al-‘aqd the essential elements (al-rukn) of the contract. This is because, according to the Ḥanafī madhhab, the essential elements of a contract are only offer and acceptance. However, what is meant by the ṣulb al-‘aqd is the counterparts (al-badalayn) of the contratc, which are also constituent elements of the contract. The consideration (al-badalayn) varies according to the type of contract. For instance, in a contract of sale, mabī’ and thaman are the counterparts, while in a money exchange contract, counterparts are thaman from both sides. Therefore, fasād regarding the type, kind and amount of the counterpart is considered strong one (al- fasād al-qawī). The defects related to the time of payment, the place of delivery, and the conditions put forward by the parties (al-sharṭ al-ja’lī) are considered weak defects (al- fasād al-ḏa’īf). While strong defect cannot be repaired, weak defects can be dismissed. However, although it is practically possible to rectify strong fasād before the end of the assembly of the parties, theoretically it is not relevant to our subject. Because the correction of strong fasād means reconstructing the contract, which denotes that the contract is established validly from the beginning. According to another division of the elements that vitiate the contract, the fasād that is present from the moment of the establishment of the contract (ibtidā’an) is called primary fasād (aṣlī or muqārin), while a deficiency that occurs after the contract, either during the assembly or during the execution of the requirements of the contract, is called incidental fasād (‘āriḏī or ṭāri’). According to al-Dabūsī, there is a difference of opinion between the founding imams of the madhhab regarding the essential and incidental defects. According to Abū Hanīfa, the contract cannot be converted into a valid contract in the case of a primary defect, but it can be converted into a valid contract in the case of an incidental defect. On the other hand, according to the approach of the Imāmayn, as long as the defect is not in the essence of the contract, whether it is primary or incidental does not affect the rectification process.

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