التكييف الفقهي والقانوني للعقد المصرفي مع العميل

Abstract

This research tackled the juristic and legal characterization of the banking contracts with the client (as an applied study on the Sudanese banking system) , which is legal study. The researcher considered the emergence of the banks in the world, their advent in Sudan and the stages of their development. He also examined the functions and objectives the traditional and Islamic banks as the study itself was based on a comparison which was stroked between those two systems. The study also dealt with the definition of the characterization both linguistically and conventionally, its relationship with the themes of the research, and elucidation of the basis of the bank’s contractual relationship with the client. Moreover, the research discussed the theory of contract between jurisprudence and the law and the extent of the possibility of its applicability to the banking contract with the client which is considered as a newly fangled financial contract. It further determined the parties to the banking contract with client with the client and its elements, characteristics and the means of its conclusion. It also broached the provisions and effect of the banking contract with the client and the ways of its elapsing and termination. Moreover the research focused on the types and forms of the banking contract with client and it elucidated the characteristics, elements controls, conditions and the advantages of the each contract and its different forms. The researcher also tackled the practical problems and cases of the defect and flaws which attended the practical application of the idea of the banks and the deviation which occurred thereto. Hence, the researcher suggested solutions and ways to remedy them and correct their course with the purpose of the reform and advancement and the strive for the achievement of the quality and the implementation of the provision of the sharia and its purpose. Finally, in its consideration of the juristic and legal characterization of the banking contract with its various types and forms with the client, the research endeavored to find the appropriate interpretation thereto in the accordance with provisions of the Islamic sharia and its purposes, as such contracts are considered as newly fangled financial contracts which require an independent judgment (ijtihad), which in turn, will achieve the public interests and conforms with the contemporary reality and does not infringe the true Islamic sharia. In addition to this it will be easy to be comprehended and applied for the employees in the banking field and the banks’ client. The research ended up with a conclusion that included the findings and recommendations.