Thèses soutenues
On 29 June, 2020, Abdulrahman ALMUTAIRI defended his PhD on Monetary Uncertainty - A Comparative Study (Supervisor: Professor Nicolas CAYROL)
Walid BEN HAMIDA, Associate Professor, University Paris Saclay (Reporting Examiner)
Arnaud LECOURT, Associate Professor, University of Pau and the Adour countries (Reporting Examiner)
Myriam ROUSSILLE, Professor, Le Mans University
Hadi SLIM, Professor, University of Tours
Jury :
Nicolas CAYROL, Professor, University of ToursWalid BEN HAMIDA, Associate Professor, University Paris Saclay (Reporting Examiner)
Arnaud LECOURT, Associate Professor, University of Pau and the Adour countries (Reporting Examiner)
Myriam ROUSSILLE, Professor, Le Mans University
Hadi SLIM, Professor, University of Tours
Abstract :
This paper discusses monetary risk as an economic phenomenon in the pricing of bonds in future contracts. It is a comparative study between the provisions of French and Egyptian law and those of Islamic law, the latter serving as a regulator in Saudi Arabia with respect to contractual obligations. The first part of the PhD focuses on the willingness of the contracting parties to enter into specific contracts or to include clauses in a contract to mitigate currency risk. The second part deals with solutions to monetary fluctuation, applied by the judge and aimed at restoring the balance of the obligations contracted by the parties. To guide his decision, the judge relies on specific theories concerning the correction of the final price of the obligation, as evidenced by the compensation of the parties suffering from monetary risk.Keywords :
Currency contingency; currency fluctuation; contractual obligations; Islamic law; clauses; exceptional circumstances; monetary valuation; redress; compensation.
On 23 June, 2020, Seda EMTAWBEL defended her PhD on Transitional Justice in the Arab World (Supervisor: Isabelle HANNEQUART, Associate Professor)
Virginie SAINT-JAMES, Associate Professor, University of Limoges (Reporting Examiner)
Alioune Badara FALL, Professor, University of Bordeaux (Reporting Examiner)
Abdelkhaleq BERRAMDANE, professor emeritus, University of Tours
It differs from criminal justice mainly with regard to the period in which it is implemented. In this context, the four main rights recognized for victims are the right to truth, the right to justice, the right to reparation and the guarantee of non-repetition. In the context of national reconciliation, it would appear that amnesties sometimes granted to perpetrators of serious crimes is one of the most controversial mechanisms of transitional justice. Indeed, it may be perceived as incompatible with the international law principle of non-impunity and generates a sense of loss of rights for the victims. This research analyses the implementation of transitional justice in four States of the Arab world - Morocco, Algeria, Egypt and Libya - which belong to the same region, namely North Africa.
Morocco and Algeria were chosen for their experience in the field of transitional justice and national reconciliation, while retaining their power structures. On the other hand, in Egypt and Libya the popular revolutions during the “Arab Spring” uprisings, gave rise to real transformations in the ruling regime. During the research, it was noticeable that these states were facing legal, economic, political and security obstacles. In Morocco and Algeria, only a few measures of transitional justice have been put into effect. As for Egypt and Libya, they have started to implement transitional justice, but in a discontinuous manner due to their unstable situations.
Jury:
Isabelle HANNEQUART, Associate Professor, University of ToursVirginie SAINT-JAMES, Associate Professor, University of Limoges (Reporting Examiner)
Alioune Badara FALL, Professor, University of Bordeaux (Reporting Examiner)
Abdelkhaleq BERRAMDANE, professor emeritus, University of Tours
Abstract :
Transitional justice is a legal approach to justice in the transition from conflict and/or authoritarian rule to peace and democracy by seeking to ensure criminal accountability, reparation and truth-seeking, i.e. to recognize victims, build trust and consolidate democracy. Transitional justice processes and mechanisms are an essential element of efforts to strengthen the rule of law, especially as the strategies adopted in this context are generally of a comprehensive nature. Transitional justice confines its scope to serious violations of human rights, certain international crimes, such as genocide and crimes against humanity, and serious violations of the laws and customs taking place in armed conflicts. Transitional justice is rooted in international charters, declarations and conventions, and its foundations are in the provisions of international humanitarian law, international human rights law and international criminal law.It differs from criminal justice mainly with regard to the period in which it is implemented. In this context, the four main rights recognized for victims are the right to truth, the right to justice, the right to reparation and the guarantee of non-repetition. In the context of national reconciliation, it would appear that amnesties sometimes granted to perpetrators of serious crimes is one of the most controversial mechanisms of transitional justice. Indeed, it may be perceived as incompatible with the international law principle of non-impunity and generates a sense of loss of rights for the victims. This research analyses the implementation of transitional justice in four States of the Arab world - Morocco, Algeria, Egypt and Libya - which belong to the same region, namely North Africa.
Morocco and Algeria were chosen for their experience in the field of transitional justice and national reconciliation, while retaining their power structures. On the other hand, in Egypt and Libya the popular revolutions during the “Arab Spring” uprisings, gave rise to real transformations in the ruling regime. During the research, it was noticeable that these states were facing legal, economic, political and security obstacles. In Morocco and Algeria, only a few measures of transitional justice have been put into effect. As for Egypt and Libya, they have started to implement transitional justice, but in a discontinuous manner due to their unstable situations.
On 10 January, 2020, Joachim LEBIED defended his PhD on The requirement of loyalty in contractual relationship under Public Law (under the co-supervision of Professors Nathalie ALBERT-MORETTI and François BRUNET)
François BRUNET, Professor, University of Tours
Pierre BOURDON, Professor, University of Cergy-Pontoise (President of the Jury)
Charles-André DUBREUIL, Professor, University of Clermont-Auvergne (Reporting Examiner)
François BRENET, Professor, University of Poitiers (Reporting Examiner)
Gilles PELLISSIER, Maître des requêtes at the Council of State
Jury:
Nathalie ALBERT-MORETTI, Professor, University of ToursFrançois BRUNET, Professor, University of Tours
Pierre BOURDON, Professor, University of Cergy-Pontoise (President of the Jury)
Charles-André DUBREUIL, Professor, University of Clermont-Auvergne (Reporting Examiner)
François BRENET, Professor, University of Poitiers (Reporting Examiner)
Gilles PELLISSIER, Maître des requêtes at the Council of State
Abstract :
The requirement of loyalty in contractual relations is the instrument by which the Council of State sounded the death knell for the instability of administrative contracts. Since 2009 and the famous Béziers I decision, the pleas invoked by the parties contesting the validity of their own contract must pass the test of loyalty. That being said, the loyalty of contractual relations helps to guarantee the stability of many administrative contracts, even irregular ones. Our study will identify this particular instrument of loyalty in litigation between the parties to an administrative contract. Although private lawyers are familiar with it, loyalty appeared to be rediscovered in 2009. Once we have identified it, the study will outline the functions of loyalty to check whether it has managed to guarantee “the objective of stability of contractual relations”. Finally, working for the very stability of irregular contracts necessarily raises the question of the intensity of tolerance. In other words, the study will have to show whether or not the Council of State is too tolerant in the presence of irregularity. Moreover, although loyalty is characterized by its indeterminacy and by its compartmentalisation of disputes in the strict recourse of the parties, this does not in any way prejudge future change.Keywords :
Loyalty. Good faith. Disloyalty. Bad faith. Honesty. Trust. Behavior. Loyalty. Accountability. Intent. Strategies. Severity of irregularity. Litigation of administrative contracts. Public procurement. Stability. Legality. Litigation cycles. Crisis. Demand. Obligation. Duty. Principle. Contractual relations. Pre-contractual relations. Post-contractual relations.
On 13 December, 2019, Sofian GOUDJIL defended his PhD on Ideological analysis of penal reforms since 1981 (under the co-supervision of Professor Laurent REVERSO and Véronique TELLIER-CAYROL, Associate Professor)
Laurent REVERSO, Professor, University of Toulon
François ROUSSEAU, Professor, University of Nantes (President of the Jury)
Audrey DARSONVILLE, Professor, University Paris Nanterre (Reporting Examiner)
Xavier PIN, Professor, University of Lyon III (Reporting Examiner)
Such an analysis highlights the ideological diversity that characterizes penal reforms at the initial stage of their development. However, it reveals an ideological unity that is hidden behind this apparent diversity when it comes to implementing these same reforms.
Jury :
Véronique TELLIER-CAYROL, Associate Professor, University of ToursLaurent REVERSO, Professor, University of Toulon
François ROUSSEAU, Professor, University of Nantes (President of the Jury)
Audrey DARSONVILLE, Professor, University Paris Nanterre (Reporting Examiner)
Xavier PIN, Professor, University of Lyon III (Reporting Examiner)
Abstract :
Penal reform evolves alongside social trends, of variable levels of violence and sometimes contradictory, and it is shaped by them. In pride of place stands ideology, with its full force of persuasion but also contradiction. Unearthing the ideology behind reforms offers a key to understanding to the penal system. With reference to the ideological rupture in 1981, due to political alternation of power, and by making this same year the starting point for this study, the challenge is to place ideology at the heart of this analysis of penal reforms since then.Such an analysis highlights the ideological diversity that characterizes penal reforms at the initial stage of their development. However, it reveals an ideological unity that is hidden behind this apparent diversity when it comes to implementing these same reforms.
Keywords :
Penal reforms; ideology; criminal policy; social contract; criminal law of dangerousness; humanist criminal law; social control.
On December 9, 2019, Anaïs HACENE defended her PhD on Co-responsibility in civil and administrative liability law (Supervisor: Professor Claude OPHÈLE-ROSSETTO)
François BRUNET, Professor, University of Tours (President of the Jury)
Jérôme FRANÇOIS, Professor, University of Paris V (Reporting Examiner)
Christophe QUÉZEL-AMBRUNAZ, Professor, University of Savoie Mont Blanc (Reporting Examiner)
Jean-Sébastien BORGHETTI, Professor, University of Paris II
From the outset, civil liability has been seen as a single harmful event which opposes a single victim to a single person responsible. However, the amount of harmful situations in such simplistic circumstances are increasingly rare and changes in the notion of liability, its foundations and its functions have led to an increasing number of co-liability cases.
However, the Civil Code, imbued with the individualistic philosophy that prevailed in 1804, does not contain any general provision for collective liability. To correct this omission, judges have had to reshape a legal regime by dealing with rules created, initially, to govern individual responsibility. This system has its limits however as it amounts to treating collective responsibility as the juxtaposition of single responsibilities without considering it as a phenomenon in its own right.
In this era of Tort Law reform, a change of perspective is needed and the established rules need be viewed as a whole in order to judge their coherence.
The study of co-liability entreats us to reconsider the importance given to the classical three-fold offence charge - damage, cause of damage, causal link - and to place the conditions of accusation at the heart of the reparation process.
Jury :
Claude OPHÈLE-ROSSETTO, Professor, University of ToursFrançois BRUNET, Professor, University of Tours (President of the Jury)
Jérôme FRANÇOIS, Professor, University of Paris V (Reporting Examiner)
Christophe QUÉZEL-AMBRUNAZ, Professor, University of Savoie Mont Blanc (Reporting Examiner)
Jean-Sébastien BORGHETTI, Professor, University of Paris II
Abstract:
Co-liability is the obligation for several people to be liable for the consequences of the same damage. It introduces complexity and has a disrupting effect on the mechanism of civil liability because it deviates from the classical model of French law.From the outset, civil liability has been seen as a single harmful event which opposes a single victim to a single person responsible. However, the amount of harmful situations in such simplistic circumstances are increasingly rare and changes in the notion of liability, its foundations and its functions have led to an increasing number of co-liability cases.
However, the Civil Code, imbued with the individualistic philosophy that prevailed in 1804, does not contain any general provision for collective liability. To correct this omission, judges have had to reshape a legal regime by dealing with rules created, initially, to govern individual responsibility. This system has its limits however as it amounts to treating collective responsibility as the juxtaposition of single responsibilities without considering it as a phenomenon in its own right.
In this era of Tort Law reform, a change of perspective is needed and the established rules need be viewed as a whole in order to judge their coherence.
The study of co-liability entreats us to reconsider the importance given to the classical three-fold offence charge - damage, cause of damage, causal link - and to place the conditions of accusation at the heart of the reparation process.
Keywords :
Causality, co-authors, co-responsible, imputation, obligation to the whole, recourse in contribution, liability, solidarity, subrogation.
On 8 November, 2019, Anthony TARDIF defended his PhD on Immunity from liability in private and public law (Supervisor: Professor Fabrice LEDUC)
Hubert GROUTEL, professor emeritus, University of Bordeaux (Chairman and Reporting Examiner)
Christophe GUETTIER, Professor, University of Le Mans (Reporting Examiner)
Julie TRAULLÉ, Professor, University of Tours
Immunity may also be procedural in that it exempts the beneficiary from an action for damages.
This kind of immunity may also have different intensities, since the action for compensation may be neutralised by the author of the damage committing either a simple fault or an intentional fault. For each of these immunity’s subspecies, the present PhD will attempt to attach a specific legal regime to them.
Jury :
Fabrice LEDUC, Professor, University of ToursHubert GROUTEL, professor emeritus, University of Bordeaux (Chairman and Reporting Examiner)
Christophe GUETTIER, Professor, University of Le Mans (Reporting Examiner)
Julie TRAULLÉ, Professor, University of Tours
Abstract :
Immunity from liability in private and public law is defined as the legal mechanism by which a person may be exempted from the normal application of an obligation of reparation or action for reparation on account of a particular quality which he or she possesses. It is inferred from this definition that immunity is divided into several subspecies. Immunity may first of all be substantial in that it affects the substance of the law. The substance of the law may then be affected to a different degree: some substantial immunities cover their beneficiary from the obligation to make reparation for the consequences of their simple faults, while other substantial immunities cover their beneficiary from the obligation to make reparation for the consequences of all their unintentional faults.Immunity may also be procedural in that it exempts the beneficiary from an action for damages.
This kind of immunity may also have different intensities, since the action for compensation may be neutralised by the author of the damage committing either a simple fault or an intentional fault. For each of these immunity’s subspecies, the present PhD will attempt to attach a specific legal regime to them.
Keywords :
Immunity; Civil liability; Administrative liability.
On 3rd April, 2019, Audrey BOURGOIN defended her PhD on “The not-yet occurred damage” (Supervisor: Professor Fabrice LEDUC)
Aline VIGNON, Professor of Private Law, University of Angers (Chairman)
Patrice JOURDAIN, Professor of Private Law, University Panthéon-Sorbonne (Paris 1) (Reporting Examiner)
Sophie HOCQUET-BERG, Professor of Private Law, University of Lorraine (Reporting Examiner)
Marie DUGUÉ, Professor of Private Law, University of Tours
Jury:
Fabrice LEDUC, Professor of Private Law, University of ToursAline VIGNON, Professor of Private Law, University of Angers (Chairman)
Patrice JOURDAIN, Professor of Private Law, University Panthéon-Sorbonne (Paris 1) (Reporting Examiner)
Sophie HOCQUET-BERG, Professor of Private Law, University of Lorraine (Reporting Examiner)
Marie DUGUÉ, Professor of Private Law, University of Tours
Abstract:
The core function of civil liability is to compensate for damage. To be implemented, it requires, a generating fact, a damage and a causal link between the first two elements. The damage must, in this respect, be definite and it is up to the plaintiff to prove it. It follows that a purely hypothetical or possible damage is not sufficient to engage the responsibility of its author. However, another function of civil liability seems to be gradually emerging, that of prevention. Based on the precautionary principle, it allows case law to grant measures of reparation even though the damage has not yet occurred. It thus takes into account the major risks that may result from the development of new technologies over which mankind has little control and which scientists have found it difficult to assess. Here are two examples. The first is in the spotlight, since it concerns the case of the relay antennas placed near a primary school (Aix-en-Provence, 8 June 2004, RTD civ 2005.146). Although no damage has yet occurred, the commune had requested the removal of the relay antennas, invoking among other things the precautionary principle, which the court of first instance, confirmed by the Court of appeal, ordered. In a different register, a person complained about the projections of golf balls on his property adjoining a golf course. No damage had yet occurred but the threat was serious given the weight of the balls. The court of cassation condemned the company operating the golf course even though the consequences of the projections were only potential and the damage was still hypothetical (civ 2e, 10 June 2004, RTD civ 2004. 738). The law thus seems to increasingly accept that a mere threat of the occurrence of damage is sufficient to engage civil liability. This new consideration of damage which hasn’t yet happened, leads to issues about how long the requirement of certainty in the estimation of damage will be needed and, a fortiori, about the relationship between the two functions of civil liability, restorative and preventive. Behind this problem lies the whole question of whether the traditional tryptic necessary for any implementation of civil liability is still required or whether there is a gradual tendency towards the disappearance of the requirement of damage in the strict sense of the term in favour of mere threats, of a risk of future damage. The theoretical challenge of this change is nothing less than the birth of a new concept of civil liability, based on the principles of precaution and prevention, and thus more oriented towards the future than towards the past.Keywords:
Damage not yet incurred - future damage - possible damage - hypothetical damage - preventive measures - cessation of unlawfulness - imminent damage - manifestly unlawful disturbance - reparation measure - full reparation - provisional reparation - possible reparation
On 29 March, 2019, Makram ETTERD defended his PhD on “The limits of the fight against terrorism in international law” (under the co-supervision of Professor Abdelkhaleq BERRAMDANE and Professor Jamel DIMASSI).
Jamel DIMASSI, Professor, Faculty of Law and Political Science of Sousse
Abdelmajid ABDELLI, Professor, Faculty of Law and Political Sciences of Sousse (Chairman and Reporting Examiner)
Montassar CHERIF, Associate Professor, Faculty of Law and Political Sciences of Sousse
Nicolas CLINCHAMPS, Associate Professor, University of Paris 13-Paris Nord (Reporting Examiner)
Pierre-Yves MONJAL, Professor of Public Law, University of Tours
It is not a question of dwelling too much on the fight itself but rather, of considering, on the basis of that same fight, (in particular the methods and means used to that end in domestic and international law, the shortcomings, the excesses, especially in the judicial sphere: applicable law, right to a fair trial, human rights in general) what limits there may be to it. The idea behind this work, with its emphasis on practice and comparative rights (French and Tunisian, for example), is to say; if this fight against terrorism is necessary, can it take place at any price? The aim of this research is to study how States try to reconcile two imperatives; the fight against this scourge, which is increasingly threatening international peace and security and which goes beyond the borders of a single State willingly or unwillingly, and the protection of fundamental rights, most of which are provided for in international texts, human rights in particular, but whose combination or conjunction with domestic regulations poses real problems. For this reason, this work is based on an approach which must, above all, be of a comparative nature, whether it is a question of legislation introduced here and there or, more importantly, of its application by both domestic and international courts.
The legal promiscuity that exists between Tunisian counter-terrorism law, which is in fact still under construction, and the French experience applied in this area, as well as the doctrine, will be of great help in developing this research. 
. 
Jury:
Abdelkhaleq BERRAMDANE, professor emeritus, University of ToursJamel DIMASSI, Professor, Faculty of Law and Political Science of Sousse
Abdelmajid ABDELLI, Professor, Faculty of Law and Political Sciences of Sousse (Chairman and Reporting Examiner)
Montassar CHERIF, Associate Professor, Faculty of Law and Political Sciences of Sousse
Nicolas CLINCHAMPS, Associate Professor, University of Paris 13-Paris Nord (Reporting Examiner)
Pierre-Yves MONJAL, Professor of Public Law, University of Tours
Abstract:
An analysis of the current international situation highlights the existence of many limitations and obstacles that constitute real impediments to an effective and efficient fight against terrorism. Indeed, the fight against terrorism is necessary but not at any price. This not the place to discuss terrorism more widely, a subject which, although general and controversial, has been much studied in legal doctrine and political science.It is not a question of dwelling too much on the fight itself but rather, of considering, on the basis of that same fight, (in particular the methods and means used to that end in domestic and international law, the shortcomings, the excesses, especially in the judicial sphere: applicable law, right to a fair trial, human rights in general) what limits there may be to it. The idea behind this work, with its emphasis on practice and comparative rights (French and Tunisian, for example), is to say; if this fight against terrorism is necessary, can it take place at any price? The aim of this research is to study how States try to reconcile two imperatives; the fight against this scourge, which is increasingly threatening international peace and security and which goes beyond the borders of a single State willingly or unwillingly, and the protection of fundamental rights, most of which are provided for in international texts, human rights in particular, but whose combination or conjunction with domestic regulations poses real problems. For this reason, this work is based on an approach which must, above all, be of a comparative nature, whether it is a question of legislation introduced here and there or, more importantly, of its application by both domestic and international courts.
The legal promiscuity that exists between Tunisian counter-terrorism law, which is in fact still under construction, and the French experience applied in this area, as well as the doctrine, will be of great help in developing this research.
Keywords:
Limits - fight - terrorism - international law - the international community - methods and means - domestic law and international law - inadequacies, excesses - terrorist threat - preventive war - self-defense - applicable law - human rights - practice - conciliation between two imperatives: freedom and international security. .
On 7 March, 2019, Fatma ZUWAM defended her PhD on “Islamic finance, an alternative to classical finance” (Supervisor: Isabelle HANNEQUART, Associate Professor)
Hadi SLIM, Professor of Private Law, University of Tours (President of the Jury)
Fleur LARONZE, Senior Lecturer in Private Law and Criminal Sciences, University of Upper Alsace (Reporting Examiner)
Eloi DIARRA, Professor of Public Law, University of Rouen (Reporting Examiner)
Jury:
Isabelle HANNEQUART, Associate Professor in Public Law, University of Tours, FranceHadi SLIM, Professor of Private Law, University of Tours (President of the Jury)
Fleur LARONZE, Senior Lecturer in Private Law and Criminal Sciences, University of Upper Alsace (Reporting Examiner)
Eloi DIARRA, Professor of Public Law, University of Rouen (Reporting Examiner)
Abstract:
The financial crisis of 2008, known as the subprime crisis, highlighted the growing disconnection between the financial economy and the real economy. The question then arose of reorienting international finance towards moral values. This context explains the interest shown in Islamic finance which was relatively spared by the crisis, in particular because of the ban on speculation (maīsir), which is illegal under Islamic law. It is also in this context that studies have presented this finance as a competitor, or even an alternative to conventional finance. This position can point to the extension of Islamic finance to Western countries. It can also lean on certain arguments revolving around ethical imperatives, advocated by Islam and adopted, in theory, by Islamic finance: the prohibition of usurious interest (ribā) and of uncertainty (gharār) in the terms of contractual transactions; sharing of profits and losses between the contracting parties and backing up any financial transaction with a tangible asset; the granting of free loans (kard al-hassān) and distribution of zakāt (alms) to the most destitute, setting up an Islamic solidarity insurance (takāfūl), made up of voluntary contributions, and where the insured are also insurers.Keywords:
Tangible asset backing - Islamic finance - Islamic bank - Islamic development bank - Usurious interest (ribā) - Speculation (maīsir) - Uncertainty and chance (gharār) - Sharing of profits and losses - Free loans (kard al-hassān) - Islamic insurance (takāfūl) - Mūdaraba - Mūsharaka - Mūrabaha - Contract salām - Contract istisnā' - Products sūkūk
Le 7 mars 2019, Fatma ZUWAM a soutenu sa thèse sur La finance islamique une alternative à la finance classique (sous la direction de Isabelle HANNEQUART, Maître de conférences HDR)
Jury :
Isabelle HANNEQUART, Maître de conférences HDR en droit public, Université de Tours
Hadi SLIM, Professeur de droit privé, Université de Tours (Président du jury)
Fleur LARONZE, Maître de conférences en droit privé et sciences criminelles, Université Haute-Alsace (Rapporteur)
Eloi DIARRA, Professeur de droit public, Université de Rouen (Rapporteur)
Résumé :
La crise financière de 2008, dite crise des subprimes, a mis en évidence la déconnexion, de plus en plus profonde, entre l’économie financière et l’économie réelle. La question s’est alors posée de réorienter la finance internationale vers des valeurs morales. Ce contexte explique l’intérêt porté à la finance islamique, qui aurait été épargnée par la crise, en raison, notamment, de l’interdiction de la spéculation (maīsir), illicite au regard du droit islamique. C’est également dans ce contexte que des études ont présenté cette finance comme une concurrente, voire
une alternative à la finance conventionnelle. Cette posture peut s’appuyer sur l’extension de la finance islamique aux pays occidentaux. Elle peut aussi se prévaloir de certains arguments tournant autour d’impératifs éthiques, préconisés par l’Islam et adoptés, en théorie, par la finance islamique : interdiction de l’intérêt usuraire (ribā) et prohibition de l’incertitude (gharār) dans les termes des transactions contractuelles ; partage des profits et des pertes entre les contractants et adossement de toute opération financière à un actif tangible ; octroi de prêts gratuits (kard al-hassān) et répartition de la zakāt (aumône) aux plus démunis, mise en place d’une assurance islamique solidaire (takāfūl), constituée de contributions volontaires, et où les assurés sont en même temps des assureurs.
Mots-clés :
Adossement à un actif tangible - Finance islamique - Banque islamique - Banque islamique de développement - Intérêt usuraire (ribā) - Spéculation (maīsir) - Incertitude et hasard (gharār) - Partage des profits et des pertes - Prêts gratuits (kard al-hassān) - Assurance islamique (takāfūl) - Mūdaraba – Mūsharaka - Mūrabaha - Contrat salām - Contrat istisnā’- Produits sūkūk
Jury :
Isabelle HANNEQUART, Maître de conférences HDR en droit public, Université de Tours
Hadi SLIM, Professeur de droit privé, Université de Tours (Président du jury)
Fleur LARONZE, Maître de conférences en droit privé et sciences criminelles, Université Haute-Alsace (Rapporteur)
Eloi DIARRA, Professeur de droit public, Université de Rouen (Rapporteur)
Résumé :
La crise financière de 2008, dite crise des subprimes, a mis en évidence la déconnexion, de plus en plus profonde, entre l’économie financière et l’économie réelle. La question s’est alors posée de réorienter la finance internationale vers des valeurs morales. Ce contexte explique l’intérêt porté à la finance islamique, qui aurait été épargnée par la crise, en raison, notamment, de l’interdiction de la spéculation (maīsir), illicite au regard du droit islamique. C’est également dans ce contexte que des études ont présenté cette finance comme une concurrente, voire
une alternative à la finance conventionnelle. Cette posture peut s’appuyer sur l’extension de la finance islamique aux pays occidentaux. Elle peut aussi se prévaloir de certains arguments tournant autour d’impératifs éthiques, préconisés par l’Islam et adoptés, en théorie, par la finance islamique : interdiction de l’intérêt usuraire (ribā) et prohibition de l’incertitude (gharār) dans les termes des transactions contractuelles ; partage des profits et des pertes entre les contractants et adossement de toute opération financière à un actif tangible ; octroi de prêts gratuits (kard al-hassān) et répartition de la zakāt (aumône) aux plus démunis, mise en place d’une assurance islamique solidaire (takāfūl), constituée de contributions volontaires, et où les assurés sont en même temps des assureurs.
Mots-clés :
Adossement à un actif tangible - Finance islamique - Banque islamique - Banque islamique de développement - Intérêt usuraire (ribā) - Spéculation (maīsir) - Incertitude et hasard (gharār) - Partage des profits et des pertes - Prêts gratuits (kard al-hassān) - Assurance islamique (takāfūl) - Mūdaraba – Mūsharaka - Mūrabaha - Contrat salām - Contrat istisnā’- Produits sūkūk