The Uncertainty in the Islamic Jurisprudence/ An Analytical Comparative study with both the Iraqi and French Civil Codes

Abstract

The concept of the uncertainty is well-known in the Islamic jurisprudence. This jurisprudence knows also the concept of the excessive ignorance, and distinguishes clearly between it and the uncertainty. The majority of the Islamic jurisprudence considers the sale of non-existent subject-matter of the contract null and void due to the uncertainty. But there is a reasonable opinion in this jurisprudence considers that every non-existent subject-matter of the contract which is uncertain to exist in the future, is prohibited from being sold, and the contract of sale is null and void. And every non-existent subject-matter which is certain to exist in the future can be sold validly, and the contract of sale is valid, in spite of the non-existence of the subject-matter at the time when the contract is concluded. The cause of the prohibition is not the non-existence of the subject-matter itself, but the uncertainty vitiating this non-existence. The Iraqi civil law No. (40) of 1951 adopts both the concepts of uncertainty and excessive ignorance. and the French civil code of 1804 does not mention the uncertainty in its texts, but requires that the content of the contract be certain and licit, in order for the contract to be valid.