الغرر في عقد التأمين التعاوني في الفقه الإسلامي

Abstract

Insurance is a form of social safety forms adopted by the society and individuals to ensure self-security and safeguard individual from any risk that can happen to himself or his property. Indeed, this is agreeable with the Islamic law, which supported the concept of appropriate insurance but discouraged about what may dotted it with any discrepancy such as the forbidden ambiguity (Garar). We have taken this ambiguity as a starting point for our research problem, which is to what extent the cooperative insurance contract is free from the probability that is laden with the suspicion of ambiguity. Based on this assumption this research aims to identify the reality of the cooperative insurance contract, which was considered the legitimate product for insurance, and to see to what extent it is free from the impact of ambiguity (Gharar) that is forbidden in Islam and considered the most important factor on which the commercial insurance contract was forbidden. To achieve this aim, the researcher followed three basic approaches: Firstly: Historical method, which is used to examine the historical factors that contributed in the emergence, development and spread of the insurance contract. Indeed, this method helps the researcher to understand the insurance contract background better. Secondly: descriptive method was used to present the scholars’ views on the definition of ambiguity, its legal state and the amount of it that affect the validity of financial contracts. It is used also, to compare between scholars’ opinions and choose their most accurate one. This leads us to come up with clear criteria of ambiguity. Thirdly: critical analytical method was the tool to scrutinize the opinions on the cooperative insurance contract which help to arrive to the most accurate rule (hokum) about the cooperative insurance contract. The research end with some very important results: first: introducing new objective criteria to measure ambiguity. Second: There is in reality no difference between commercial insurance and cooperative insurance. Third: the Cooperative insurance contract in its current should be prohibited same as the commercial one because it contains ambiguity.