Analyzing the effect of commercial risk on Mudaraba and Jo'ala banking contracts

Islamic jurisprudence has considered the acceptance of commercial risk by the parties as one of the basic conditions for the validity of the contract in contracts that are based on a joint activity between the parties with the intention of gaining profit and benefit. The basis for defining this condition in the holy Sharia is the prophetic prohibition of ribh mala-y-gham, that is, the invalidity of obtaining profit without accepting risk. Since the laws of our country consider any discrepancy between contracts and Sharia to be invalid and illegitimate, we were asked what is the effect of commercial risk on the validity of Mudaraba and Ja'ala banking contracts? Therefore, the results of this research revealed that firstly, considering that in Islamic jurisprudence and Iranian law, the guarantee of capital in Mudaraba invalidates the contract and in Ja'ala it is not invalid, therefore, assuming that these contracts are banking, the same jurisprudential and civil law rulings apply. Secondly, the possible loss resulting from the execution of the contract, in the assumption of fault, is borne by the culprit in terms of civil liability, and in the assumption of no fault in the Mudaraba contract, it is borne by both parties and in Ja'ala it is subject to the contract; However, there are two cases of loss on the bank's side: first, the bank has paid the facility from its own assets, and second, the bank has paid the facility from the depositors' assets. In the first case, the loss is borne by the bank as an independent legal entity, and in the second case, the loss is subject to agency regulations..