Ownership in fictitious transactions

Some intermediate concepts have emerged from the reflection of the principles of Islamic jurisprudence on the usulul. Among these concepts, one of the special concepts that emerged in Hanafi fiqh terminology is fesad. The impact of the phenomenon of fesad on property is important in explaining many current issues. For this reason, we have examined the effects of fāsid contracts on property in our study. While examining these effects, we have tried to strengthen the ground of the issues related to this subject by analyzing them from many different perspectives by centering on the Hanafi madhhab. In this direction, our thesis consists of an introduction, two main chapters and a conclusion. In the introduction, the subject, purpose and importance of our thesis are explained. In the first chapter, the different meanings assigned to the concept of fāsid by the Hanafī school and other schools of thought are pointed out. While the Hanafīs assigned an intermediate meaning to this concept between sahih and falsehood, the republic identified this concept directly with falsehood. The main reason for the Hanafīs to resort to such an intermediate meaning is that fāsid is valid for worldly rulings, whereas bātil invalidates the ruling both in the worldly and the hereafter. However, they also emphasized the necessity of annulling a fāsid ruling in order to be relieved of its hereafter responsibility. In the first chapter, the concept of fāsid was analyzed and its usage in the Hanafī madhhab and its different meanings in other madhhabs were discussed. In addition, the different uses of the concept of fâsād in usul and füru works were tried to be revealed. Again in this section, the issue of niyyah, which causes a worship or transaction to be characterized with the sanction of "fâsid", is explained, and discussions about the evidence of niyyah in fâsid are included. In the field of transactions, the effect of the prohibition by the ruler (shāri') on the essence of a contract, its non-separable attribute and its neighboring attribute, and how it is evaluated by the sects of fiqh have been explained. In the second part of our thesis, whether or not the fāsid contract causes the transfer of ownership is analyzed. Whether the transfer of ownership, which is the ruling of a valid contract, is also valid for forbidden contracts is discussed by taking into account the rules of usul al-usūl. Fāsid contracts of sale are contracts that do not VII fulfill the conditions of validity. Therefore, it is unthinkable that contracts that are not valid are also valid. For this reason, firstly, the conditions of existence and validity of sales contracts are discussed, and then the fāsid contracts that do not fulfill the conditions of validity are explained. Fāsid contracts can be transformed into sahīh contracts due to the formation of a custom about them. However, not all customs make every fāsid contract sahih. For this reason, the fāsid contracts that can be affected by custom are explained. Some fāsid contracts may become sahih due to social hardship. In this section, the hardship that affects the validity of a fāsid contract is explained. Fāsid contracts that are approved by the state authority can also become sahih. In this section, the status of fāsid contracts approved by the state authority today has been explained. Finally, it is explained whether the fāsid contracts that have not been rendered sahih by one of the other ways of rectification that we have mentioned and those that we have not mentioned can lead to a change of ownership. In our study, which is centered on the Hanafī madhhab, we concluded that the fāsid contracts of sale cause the ownership of riba.