Increase when repaying a loan between prohibition and permissibility

Abstract

Abstract. : The origin of the loan contract is that the borrower returns to the lender the same amount and description as he borrowed, and that the lender does not receive any benefit from the borrower outside of the loan contract, even if the latter is not of the same type as the borrowed money. However, in reality, it often happens that the lender recovers from the borrower money that is greater in amount than the borrowed money or better in quality, whether the recovery is based on a contractual condition or custom or without them. The borrower may also take an action that takes the form of compensation or donation for the benefit of the lender based on a contractual condition or without a condition. The diversity of forms of increase when returning the loan and the difference in its provisions constituted an incentive for us to research its provisions in Islamic jurisprudence and law in order to clarify the extent of the agreement between the texts of the law and Islamic law related to some forms of that increase organized legislatively in compliance with the provisions of the Iraqi Constitution in force for the year 2005, which prohibited the enactment of any legislation that conflicts with the constants of Islam and to propose treatments in places where this agreement is absent, in addition to investigating the ruling on its forms that are not organized legislatively. In Islamic jurisprudence, by reviewing the opinions of Muslim jurists regarding each of its forms, with the aim of giving preference to the opinion that most achieves justice and is most consistent with the texts of Sharia and law, and proposing its codification within the folds of the loan contract texts contained in Iraqi Civil Law No. 40 of 1951.