The rule : ‘The Originality in Contracts is Legalization’An Original Doctrine study

In the name of Allah and with all the praises to him and all the prayers upon Mohammed the son of Abdu Allah, the greatest creation of Allah, peace be upon him and upon all his family and friends. For that; this study aimed at showing the rule: “The originality in contracts is legalization” and showing its meaning and its ancient and modern applications. Also, its relation with the rule of the ‘originality in things is legalization’, the rule of ‘certainty cannot be removed by doubt’, and the evidence of ‘Al-Estisahab’. The preliminary study talked about the doctrine rule in general, as it showed its lingual and terminological definition, and that the doctrinal rule has conditions that should be taken into considerations. In addition, it addressed its importance and its argument. It was illustrated that the case ( the rule argument) has the scientists conflict; however, the researcher came to result of the scientists saying that it is ‘the argument but with taking care of the legal text and keeping it without being careless in saving it.’ In the first chapter, I talked about a rule, which has an important relation with the rule of ‘the originality in contracts is legalization’, and that is ‘the originality in things is legalization’ as the researcher illustrated the rule of things is legalization, and how it is related to the rule of that ‘certainty is not removed by doubt. It is one of the biggest five rules which forms a base rule for ‘the originality in things is legalization’, and the rule of ‘ the originality in contracts is legalization’ is one of the doctrine rules which comes under ‘the originality in things is legalization’. Both of which share in common: inclusiveness, documenting, evidence, categorizing, the topic, the aim, the doctrinal branches, uses and solutions, the form and the scientist arguments in each one of them. In the second chapter of this dissertation, the researcher talked about the argument between the scientists about the rule: originality is legalizing, as the scientists were divided into three sides. First: blocking, second: legalizing, and third: stopping. Each team supported itself with a group of evidences, and they replied to these evidences and discussed them. The answers were given to the evidences that were discussed for those who claimed it should be legalization. Also, there was a weakness in the evidence of those who are with blocking the rule, as it has been discussed and answered. Therefore, the legalizing side was the outweighing, and there was a weakness in the blocking side, because it was discussed and answered. The evidence and the outweigh of the legalizing side was strong and outweighing, and the researcher did not provide evidences for those who stopped the judgment. After that, the researcher searched for the relation of the rule ( the originality in contracts is legalizing) with the evidence of Al-Esteshab, as it was defined and its pillars conditions and types, as well as its argument and conflict between the scientists were illustrated, and it proved for the researcher that the argument is in payment and proof, as it is proved in a number of evidences. Moreover, the relation of the rule ‘Originality in contracts is legalization, with the evidence of Al-Esteshab has a strong relation, for Al-Esteshab is an original rule and the originality in contracts is legalization is a doctrine rule; therefore, the doctrine rule is based on the original rule. In the third chapter of this dissertation, the rule was illustrated through: explaining its terms, its general meaning and other terms related to it, also evidences on its legality. It was illustrated that the rule of ‘ the originality in things is legalization is a base to rule of ‘ the originality in contracts is legalization’, and after that it mentioned old doctrine applications, as well as modern applications with more than one contract like the insurance, the contract of Ijarah ( lease which is ended by being owned), Mosharake ( joint venture which is ended by being owned), stock contracts and the penalty clause and Al-Estejrar contracts. The dissertation mentioned as well the rules exceptions, as each rule has its exceptions and irregularities and that does not doubt the rule but removes what is not from it.