ترديد الأجرة وتطبيقاتها الفقهية – الشرط الجزائي أنموذجًا

Abstract

This study aims to clarify the concept of opting the wage, comparing it with the option of itemization in sale and mention its forms and applications according to the jurists and of its contemporary application with reference to a contemporary application of it, regarding to the issue of the penalty clause. The study followed the descriptive approach which is based on induction, analysis, and deduction, by collecting scientific material from Islamic jurisprudence books, and analyzing the sayings of jurists, and so on all the way through the appropriate jurisprudential interpretation for the issue of the penalty clause.

The study concluded that it is permissible to opt the wage in all its forms which are: opting the wage by the type of work or place of benefit, opting the wage by the labor or the load and distance on the animal, opting the wage during working hours and opting the wage for the late payments. However, for the last form to be valid, an agreement must be reached in the council on the method of immediate or deferred payment.

The majority of contemporary scholars have permitted the penalty clause in all financial contracts - except for contracts in which the original obligation is a debt -. And they differed in its jurisprudential interpretation, this study mentioned a conclusion on the issue of opting the wage during working hours which was permitted by the two Hanafi and Hanbali scholars in a narration.