Loan contract in Kuwaiti civil law.
The magazine did not present the loan contract even though it is one of the permissible transactions by the Sunnah and consensus, and the Hanafis defined it as what you give of money like me to receive the same, as the Malikis defined it as giving something financed for the benefit of the one given to him, in return for a similar compensation that is deferred in the liability
The project defines it in Article (543) as a contract by which the lender is obligated to lead to the borrower an amount of cash or something similar in exchange for a return similar in kind, description and amount, and the result of that is that the loan is a consensual contract that takes place as soon as the offer and acceptance meet, and the delivery of the borrowed thing is a commitment created by it. The loan contract is held by the lender and is not a cornerstone of the contract itself, in contrast to some codes that make the loan in kind a contract that can only be made by delivery (compare, for example, Article 684 Iraqi, Article 754 Lebanese, Article 1892 French).
Most of the thing is borrowed in cash, and that is why I have mentioned mention in the definition, but there is nothing to prevent this thing from being nothing but money as long as it is lesbians that are consumed by using it. It goes without saying that the borrowed thing must fulfill - in addition to that - the general conditions that must be met in the place, so it must be a specific or identifiable existence, not contrary to public order or morals.
1 - Lender's Obligations:
Article (544) discusses the lender’s obligation to deliver and the consequence of loss before it takes place. With regard to delivery, if the thing borrowed is money - which is the majority - and the borrower becomes, once the loan is completed, a creditor to the lender with that amount - because the money does not have to be appointed - as well as if the loan falls on other homosexual things. In both cases, the lender is obligated to deliver the borrowed thing, and the general rules are followed in that, especially the rules established in the seller’s commitment to deliver the sale. If the lender breaches his commitment to delivery, the borrower may demand the execution in kind.
With regard to the consequence of perdition, it is not conceivable, if the borrowed thing is an amount of cash or any other homosexual thing that is not determined by the secretion that the thing perishes before delivery, but if the borrower were other homosexual things and were appointed by the secretion, then if they perished before delivery due to a foreigner, their destruction would be on the lender. If it perished after handover, its destruction was a priori on the borrower, and these provisions have an analogy in Egyptian law (Article 539 civil) and Arab laws that were taken from him.
The lender is also obligated to guarantee maturity, so if the borrower has similar things other than cash, and they are appointed for secretion and handed over to the borrower and then they are due, the loan provisions (Article 545 of the draft) were followed, which stipulates that there is no guarantee unless the lender deliberately concealed the reason for the entitlement. But if the borrower is cash or anything else like that which has not been determined by secretion, then the maturity is not valid and it is not imagined that it will fall into it.
As for the obligation to guarantee the hidden defects, the draft was presented to him in Article (546) and the basic principle is that the lender is not obligated to guarantee the defect because he is a donor. If a hidden defect appears in the thing and the borrower chooses to retain it, he is not obliged to return anything but the value of the defective thing, however if the lender knows about the defect and deliberately conceals it, then he is responsible for the harm caused by the defect. This is the general rule in guaranteeing the defect that the project committed to in all donation contracts, such as donation and loan, unless the contracting parties agreed to the contrary.
2- Obligations of the borrower:
Islam permitted the loan on the basis of cooperation and human brotherhood, and relieving distress and calamities, and the denier stressed the moneylenders and threatened them with the most severe types of threats and intimidation. Therefore, it is forbidden in Islamic jurisprudence to stipulate in the loan any condition that brings benefit to the lender, otherwise the contract is spoiled by such a condition. The project was keen to adhere to this principle, and it stipulated in Article (547) that the lending be without interest and that every condition stipulated otherwise without prejudice to the loan contract itself shall be deemed as interest and every benefit stipulated by the lender, in whatever form it is.
The project then presents the borrower’s obligations, which are to return the same and collect the loan expenses: according to Article (548), the borrower must return the same by the agreed term or when this term falls in accordance with general rules. If the contracting parties do not agree on a deadline to respond. The judge appointed the term according to the circumstances, that is, according to the presumed will of the contracting parties, and it is determined by custom and the purpose of the loan, and not by the financial condition of the borrower. And in that, the Malikis say: If the loan does not have a set term, then it is not without, either that the custom is to return such a loan at a specific time, as if he borrowed wheat, and it is customary to return the same after the wheat is harvested. If it is a habit, then it is applied.
It is also enforced by the expiration of the deadline, so it is obligatory to return it at the time in which it is customary, and if it is not a habit, then it is not obligatory to return it unless it has benefited from the use in which it usually took place similar to it, and also the judge determines the term if it is agreed that the response is at the ability or easy and in accordance with general rules In this, it takes into account the debtor's current and future resources, and requires the attention of the person who is keen to fulfill his obligations.
According to Article (549) of the project, the borrower must return the same in the place agreed upon, and if there is no agreement on a place, the response is obligatory - contrary to the general rules - in the home of the lender because the loan is without payment, so the creditor is not obligated to bear the expenses of his pursuit of the borrower's home. And the borrower returns the same as what he borrowed, in type, description and amount, so his commitment is a commitment to achieve a goal, and if the thing borrowed is money - as is often the case - the borrower is obligated to return to the lender only an amount of money equivalent in number to the amount that he borrowed without having the high value of money, or Its decrease has an effect according to general rules.
But if the borrowed thing is from other lesbians, then the borrower must return the same in kind, description and amount, and there is no point in changing the value of the proverb at the time of response (Article 550/1), so the loan - as the tap says - is similarly guaranteed regardless of its cost and its cheapness. And if a similar thing was cut off from the market, the lender would have the option: either he waits for the thing to return to the market and the borrower returns him like it, or the borrower demands the value of the thing borrowed at the time and place where the response is required (Article 550/2)
As for the expenses of the loan, such as the expenses of writing his contract, the expenses of the mortgage that he guarantees, the expenses of receiving the loan and its return, and so on, the borrower is the one who bears them, unless there is agreement on others (Article 551).
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