Integrating cooperation’s contracts in Islamic jurisprudence, and applying them to some contracts: Takaful insurance as a model

Abstract

Contracts in Islamic jurisprudence are divided into several categories, according to their name, legality, validity, necessity, or the exchange of rights, and other categories. With regard to the criterion of exchange of rights, they are classified into two types: compensatory or exchange contracts. And donations or non-compensatory contracts. Some Muslim jurists add a third type which they call: contracts that contain the meaning of donations at the beginning, and the meaning of compensation at the end. Rethinking on this subject, it seemed to us to propose a third distinct type under the name of “cooperation contracts”, which contains some characteristics of compensatory or exchange contracts, and donations or non-compensatory contracts, in addition to its own characteristics. This proposal is due to the multiplicity of jurisprudential adaptation of new emerging transactions and contracts. And what resulted in the confusion of the Muslims, scholars, muftis, and those interested from non-Muslims, and on the other hand, the spread of cooperation contracts and transactions in this era, in many areas such: shopping, health, housing, insurance, agriculture, industry and money circulation (employee associations are called Dart in Morocco, which is derived the name of rotation), and others. It becomes clear to us that “proposing cooperation contracts” will contribute to reducing this confusion, and rooting for latent contracts in jurisprudence that are adopted and applied by Muslims since the first Islamic society to this day, with the approval of the prophet Muhammad, may God’s prayers and peace be upon him, for some of its forms such as blood money, and the approval of the Muslims jurists, throughout history, of many contract under various names and adaptations: such as the endowment, the gift, the reward, and the donation, or even without a name or adaptation. The Holy Qur’an, the Prophet’s Sunnah, and the jurisprudence of Muslim jurists encourage for cooperation and its various forms, which facilitates the transactions and calls for the rooting of cooperation contracts, considering cooperation as one of the provisions and purposes of Sharia. Nevertheless, the cooperation contracts in jurisprudence were neither rooted nor included, but many scholars, ancient and modern, were causally interested in the subject, even though they did not issue a separate a book or research on it. And since the permission is the origin of contracts and transactions, the Muslim community innovates and establishes new contracts according to its need and interest, and the role of the Muslim jurist is to judge them according to the legal regulations of nullification, correction or modification. For this reason, this study gathers the various aspects of the subject in single research, with a new rooting and structure for the cooperation contracts, especially since the structure of contracts is neither new nor invention in Islamic jurisprudence, and the cases or types of structure that do not result any prohibitation or non-compliance: it is based on the principle of permissibility in financial transactions.