Islamic and legal analysis of Sokuk Estesna

Document Type : Research Paper

Authors

1 Assistant Professor, Private Law, Faculty of Law, Tarbiat Modares University, Iran

2 Ph.D. Candidate, Department of Private Law, University of Qom, Iran

Abstract

One category of Sokuks is “Sokuk Estesna’”. They are issued, offered and transferred, based upon a contract of Estesna’ in construction of a specified property and/or its completion or in civil construction projects. “Sokuk Estesna” are divided and analyzed into two categories: the plain ones (direct and indirect) based upon a credit instrument; and complex (pursuant to a directive). The legal nature of the act of issuance may be studied in accordance with the identity of the issuer; if the latter is a merchant, the act is considered commercial, otherwise civil. If the act is performed by a merchant moral person, it is also deemed as being of commercial nature. The nature of the act of offering has been put under scrutiny in relation to its civil and commercial aspects. Under the first category, it is a presentation and transfer of the deed of assignment and in the second category, a presentation and transfer of shares. The legal nature of the act of disposal of “sokuk estesna” in the subsequent stages (secondary market) is cession of claim in the first category, and the transfer of shares under the second category.

Keywords

Law Quarterly
Volume 44, Issue 3 - Serial Number 3
October 2014
Pages 327-344

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