الاستثناءات في العقود الواردة على الملكية من نظرية الالتزام في نظام المعاملات المدنية السعودي -دراسة فقهية تطبيقية-

Abstract

Abstract:

This study aims to identify the issues, rules, and circumstances in which the provisions governing ownership contracts among the nominate contracts regulated by the Saudi Civil Transactions Law depart from the general principles of the theory of obligations; to identify the underlying provisions from which such exceptions are made; to analyze those exceptions; to elucidate the Islamic jurisprudential foundations and sources of the relevant statutory provisions; and to demonstrate their practical application. The study examines four contracts that transfer ownership: sale, gift, loan, and settlement. It addresses a central question concerning the exceptions introduced by the legislature in the Civil Transactions Law, in relation to ownership contracts, from the general principles of the theory of obligations. The study adopts an inductive and analytical methodology by surveying the statutory provisions falling within its scope, tracing the foundations of the exceptions, analyzing their rationale, and identifying the considerations underlying them, while linking them to Islamic jurisprudence and their Sharia-based derivation. The study identifies a number of exceptions and explains the basis of each, including due regard for the nature of certain contracts, the interests of one or more contracting parties, and the particular circumstances of the parties. It recommends systematically examining exceptions across legislation in general and analyzing their rationales so as to enhance effective statutory application and assess consistency among legal provisions. It further emphasizes the importance of connecting statutory provisions with their Islamic jurisprudential and Sharia foundations.
Keywords:
Exceptions; Civil Transactions Law; Contracts; Obligations; Ownership.