أحكام الضمان في الفقه الإسلامي والقانون اليمني الدكتور/ مصعب عمر الحسن طه(1) الباحث/ يعقوب علي مهيوب الوحش(2)

Abstract

Abstract

       In this study, the researcher followed the descriptive analytical and inductive approach. the study included an introduction and two papers. The introduction showed the significance of the research and that the subject of guarantee refines the legal thought through recognizing the wonderful jurisprudence industry presented by Islamic jurisprudence with its different doctrines of this thought, and its importance is not limited to this theoretical aspect only, but  rather Practical importance as well, and the aim of the research is to identify the guarantee, its legitimacy, conditions and importance i in jurisprudence and Yemeni law, and to clarify the reasons for the guarantee and its provisions and what is achieved with it. The research defined the term "guarantee" both  linguistically and terminologically  , showing  its legitimacy in the holy Qura'an and the Sunnah ,and what is mentioned in the Yemeni law of the provisions of the guarantee ,and the conditions of the guarantee and its divisions according to the Shafi’i and the Hanafi dictorines and the chosen division. and it has been shown that the commitment or the contract as a reason for the guarantee and clarification of the meaning of the contract and the contracts that result in the guarantee in in jurisprudence and Yemeni law, and that the harmful act, with the hand of the guarantee is a reason for the guarantee as well, and the clarification of what is the damage, its types and the consequent guarantee, and the judgment of damage by the matter of others and the consequences thereof, and the differentiation between the hand of trust and the hand of guarantee and their ruling, and the provisions of the rape, its effects and the provisions that ensue to insure the raped and and  the provisions that the  Yemeni law followed . the research has presented several results, the most important of which are: The guarantee in language may be called bail, and it has reasons and conditions  which makes the guarantee   invalid unless these conditions are fulfilled. Then the study concluded with several recommendations, the most important of which are: paying attention for studying the provisions of Islamic jurisprudence, a legal jurisprudence study and comparing them with laws, and clarifying what contradicts Islamic shariah thereof, and the call to amend it in accordance with our Islamic religion. Legislative and the judiciary must observe the provisions of Islamic shariah when enacting laws and ruling among people for the sake  of achieving their benefit  in their religion  and their life.                              

Key words: provisions, guarantee jurisprudence, law.