Journal of Human Security

Lease-to-Own Sale and Its Shari‘ah Classification: A Comparative Jurisprudential Study with Civil Law

Assoc. Prof. Dr. Siham Ali Hussein Al-Nasiri
University of Kufa, Faculty of Jurisprudence.

Abstract

Islamic Shariʿah embodies the conclusive and complete form of divine legislation. It is not limited to a specific period or community. Rather, it encompasses all of humankind. This can be seen in the following Qur’anic verse: “And We have not sent you except to all mankind…” (Saba’ 34:28). Therefore, its fundamental principles have the power to remain applicable throughout different eras of history. They can also be executed in spite of the ever-changing nature of social and economic life. In the realm of human life, renewal (Tajdid) embodies an innate principle that enables progress and development in civilizations. The dynamic needs of individuals, communities, and states require adaptations that meet the requirements of different situations. In contemporary life, many fields have faced tremendous changes. This has given rise to new contractual forms. Among them is the lease-to-own contract. It embodies a new contractual form that has become intimately associated with economic growth in contemporary life. Islam, as a complete and integrated system, guides humankind to the right path to attain blissful life and progress. It also provides answers to problems faced in different stages of life. Through the flexibility and vitality bestowed upon it by God Almighty, the Islamic legal system accompanies the growth of human civilizations. This adaptability also enables it to deal with newly emerging issues and make appropriate Shariʿah rulings on them. In this regard, the lease-to-own contract has emerged as one of the most significant contract forms that demand precise juristic and legal evaluation. The contract form has elements of leasing and sale, which are intricately linked with one another, thereby demanding precise evaluation of the contract form from the juristic point of view. Considering the increased usage of this contract form in modern-day financial practices, various scholarly views have emerged on the true nature of this contract form and its appropriate juristic classification within the broader realm of Islamic Jurisprudence. It has, therefore, become imperative to evaluate the corresponding provisions of civil law with regard to similar contract forms to establish points of convergence and divergence with the Islamic Jurisprudence provisions. The current study, therefore, attempts to explore the true nature of the lease-to-own contract, various views of contemporary jurists on this contract form, and its corresponding provisions of civil law, with the aim of ascertaining its precise juristic classification that corresponds with the objectives of Shariʿah and establishes the true worth of Islamic Jurisprudence as an appropriate legal code for human life at all times and in every context.

Keywords: The Holy Qur’an, Prophetic Sunnah, Islamic Shariʿah, Jurists, Sale, Lease, Challenges, Solutions, Conditions, Positive Law. ,