PENETAPAN SYARAT DALAM AKAD PERNIAGAAN: KEDUDUKAN DAN GARIS PANDUANNYA MENURUT FIQH ISLAM

Abstract

The validity of the stipulation of shurut, conditions in business
contracts is a point of lengthy discussion among fuqaha', Islamic
law scholars in the past and at present. Despite of the numbers of
disagreements, they all agree that justice or in this particular issue,
contractual justice must prevail. Therefore, the disagreement
among the scholars can be summed up to the diasagreement about
the way how justice to all contracting parties can be best protected
and the interest of the society can be best served. Identifying the
above mentioned question, is the main objective of this paper. To
achieve this, this paper will investigate the views of fuqaha' on
some related issues like the theory of freedom of contract and
ibahat al-asl. The finding shows that as long as the shurut do not
contradict any of the contractual principles laid down in the nusus
of the Qur'an and the prophetic hadith, do not endanger the
interest of the contracting parties in particular and the interest of
society in general and the shurut are also well accepted by the
society as good for them, than it must be so considered and be
regarded as legally valid.