نوع مقاله : مقاله پژوهشی
نویسندگان
1 گروه فقه و حقوق دانشگاه شهید مطهری، تهران، ایران
2 گروه فقه و حقوق، دانشگاه شهید مطهری، تهران، ایران
کلیدواژهها
عنوان مقاله English
نویسندگان English
This article examines whether cryptocurrencies can be accommodated within the definition of sale in Article 338 of the Iranian Civil Code, which frames sale as the “transfer of ownership of an ‘ayn for a known consideration.”The emphasis on ‘ayn raises questions about the applicability of sale to modern intangible assets.Employing a descriptive‑analytical method and drawing on Imami jurisprudence,civil‑law doctrine, and legislative indications,the study reassesses the historical rationale for introducing‘ayn into the definition of sale and evaluates the arguments surrounding the requirement that the subject matter be corporeal.The findings show that transactions in Islamic law are generally imḍāʾī(validated by established practice),and no Sharīʿa‑based evidence confines the subject matter of sale exclusively to physical objects. Commercial custom—alongside Qur’anic and narrative usages of“sale” for benefits and rights—indicates that what is essential is the property character of the item and its ability to be part of a person’s estate.Thus, restricting sale to corporeal items lacks firm grounding; the historical focus on ‘ayn primarily reflects the dominance of tangible transactions and efforts to distinguish sale from lease. Even if ‘ayn is maintained in Article 338,limiting it to material objects is unwarranted and inconsistent with modern asset classifications that recognize intangible property.Cryptocurrencies, despite being immaterial, possess determinacy, assignability, and independent transferability—features amounting to a form of “electronic corporeality.”Therefore, their exchange can fall within an expanded interpretation of ‘ayn. The study ultimately recommends reforming Article 338 to center the definition of sale on “property” or to endorse a broader interpretive approach that aligns with contemporary assets.
کلیدواژهها English