The Ruling on the Penal Condition Imposed for Delaying the Payment of Debts in Islamic Jurisprudence and Kuwaiti Civil Law (A Legal Jurisprudential Study)

Abstract

The evasion of paying debts has become widespread in our contemporary reality. Its causes are usually attributed to the penalty clause included in various contracts, such as compensating the creditor with a sum of money if the debtor is late in paying, which is the practice of usurious banks and some contracts, which results in a legal sin due to the usury that surrounds those transactions, which is forbidden by Islamic law; therefore, there has become an urgent need to study the penalty clause, clarify its nature, explain its ruling, and the rulings related to it, whether in Islamic jurisprudence or Kuwaiti civil law. The nature of the penalty clause, the conditions for its entitlement, and its ruling have been explained, and the most likely opinion is that it is not permissible to stipulate financial compensation for late payment of a debt in a specific amount or at a specific percentage, because it is the forbidden usury of the Jahiliyyah, and it is permissible to stipulate a penalty clause in all financial contracts except for contracts in which the original obligation is a debt, because this is explicit usury, and the most likely opinion is that it is permissible to stipulate compensation for the action of the solvent debtor who delays payment for the actual damage resulting from the loss of the confirmed profit without the lost profit, and the permissibility of financial punishment against the solvent debtor who delays, and spending it in the public interest has a legal direction from the perspective of Islamic policy in order to deter delayers, and that the Kuwaiti Civil Law has invalidated every agreement on usurious interest, in any form, even though it allows the creditor to request compensation under specific conditions, and compensation is optional for the judge and the requirements of justice are taken into account in it.