CONTRACT LAW

Batoota — Tue, 06 Nov 2012 06:43:20 +0000

CONTRACT LAW. Classical Islamic law did not have a comprehensive theory of obligations and contracts. The formation of the law as a distinct discipline, with the rise of fiqh treatises after the ninth century and with the common-law jurisprudential accretions through the centuries, meant that a comprehensive system was attempted only in the modern period. This attempt took two forms. Although the theory of obligations and contracts was being presented by some individual authors fromEgyptand theLevant(notably Mahmasani, Chehata [Shihatah], and Sanhuri) in well-constructed treatises, the effective codification of the law of contracts was achieved in most countries of the Islamic world in the late nineteenth and twentieth centuries.
In classical law, the general regulation of a contract can be presented under the twin headings of Qur’anic injunctions and fiqh principles: The first and more straightforward structure of the law of contracts was encompassed by the basic principles adumbrated in some verses of the Qur’an. The Qur’anic injunctions require contracts to be entered into and applied in good faith, to be preferably in writing, and to avoid including ribs (interest, usury), with the definition of riba remaining ambiguous to date. Second, the classical law of obligations as developed in the jurists’ work was elaborated in much more detail, but there is no book of contracts in the great treatises of fiqh. Rather, the core model is the contract of sale. This is followed by a number of other, less-important contracts which are discussed, sometimes in minute detail, generally without the clear sense of structure that the modern age requires. The fact that the sale contract appears as a root model is also indicative of the centrality of commerce in classical Islam, and it shows the importance of practice for the formulation of Islamic law.
Apart from the various commentaries one finds in the fiqh books, contractual models can also be found in the literature of shurut (lit., “conditions”). Shurut are the legal formulas which judges and legal specialists have followed in the course of their practice and which vary over time and geographical area.
In the nineteenth century a decisive change in legal systems took place with the success of the French Napoleonic Code and its spread in the world with the extension of colonial rule. It was also the occasion for the Muslim tradition, then vested in theOttoman Empire, to seriously consider the codification of the law of obligations. This resulted in the celebrated Majallah (Mecelle), enacted between 1879 and 1886, which in turn became the model for widespread codification of the law of contracts in the Muslim world. Codification of the Islamic law of obligations then took place inNorth Africa(Tunisian Majallah of 1906, Moroccan Code of 1912) and in the private compilations of the Egyptian Muhammad Qadri Bdsha and the Saudi Ahmad ibn `Abd Allah al-Qari. InIran, a similar process was completed in the mid-1930s with the Iranian Civil Code. In other countries of the Muslim world, especially in those countries which were under British or Dutch influence (India,Pakistan,Indonesia), legislation was more piecemeal and tended to be less attentive to the Islamic legacy.
Another major phase of the codification of the law of contracts was completed when the Egyptian Civil Code was passed in 1949, under the guidance of `Abd alRazzaq al-Sanhuri (d. 1970. The Egyptian Civil Code was the model for Syrian, Kuwaiti, and Libyan contract codes. InEgypt, Sanhuri was careful to incorporate fiqh principles and Egyptian case-law precedents, but the language used by him and his fellow drafters incorporated a comparative element which diluted the more classical terminology of the Majallah. Later civil codes (in Jordan, a new code was passed in 1976; in Kuwait, 1980; in the United Arab Emirates, 1985; in the Unified Yemen, 1992) paid more attention to fiqh terminology, following the experience of the Iraqi Civil Code of 1953, which appeared as a compromise between Sanhuri’s code and the Majallah. There are jurisdictions, such asSaudi Arabia, where a unified civil code has not been passed, and where the law must still be ascertained in the light of the common law represented by classical fiqh, but most jurisdictions have preferred the simplicity of an integrated text for the law of obligations and contracts.
Owing to this vast experience, the law of contracts is rich and variegated. A few principles can help set the tone with regard to the general rules of interpretation of contracts, to the requirements of “the contractual session,” and to the conditions for a judicial revision of contractual terms.
Article 3 of the Majallah specifies that “in matter of contract, intention and meaning have priority over wording and syntax.” This establishes the importance of intention over formal expression, and it is derived from a saying ascribed to the Prophet on the basing of acts on intentions. Classical law, however, as Sanhuri has suggested, “stops at the declared intention and does not go beyond it to the hidden intention. . . . The principal source of interpretation must be found in the expressions and formulas used by the parties in the contract.”
Whatever the ultimate importance of formalism and consensualism in the law of contracts, many jurisdictions in theMiddle Easthave introduced the principle of the unity of majlis al-`aqd (“the contractual session”). A major worry of classical law is the uncertainty of the terms of a contract, and classical jurists have favored the establishment of what amounts to a unit of negotiation for the contract, which is limited in time and place: the majlis al-`aqd. The theory is complex and elaborate, but it has been described by the Hanafi jurist Kasani (d. AH 58’7/1191 CE) as “offer and acceptance in the same session: if the session varies [tkhtalaf al-majlas] the contract does not take place” (n.d., vol. 5, p. 136). The term will be found invariably in several modern Muslim jurisdictions, although contracts on future things and variations on the obligations in more complex cases have allowed contemporary requirements to be respected in the present laws of contracts.
Contracts, when valid, are binding. Vices of form and consent are known in Islamic law, but some tenets of the classical theory have been revived in the possibility of revising a contract when some of the obligations have become too onerous on one of the parties. Although these conditions have been strictly limited in the decisions of present-day Arab courts, the principle has been consecrated in several codes, notably inEgyptandIraq.
[See also Commercial Law; Economics, article on Economic Theory; and Mecelle.]
BIBLIOGRAPHY
Classical Fiqh Books of Sales
Kasani, Abu Bakr ibn Mas`ud al-. “Kitab al-buyu”‘ (The Book of Sales). In Kitab bada’i’ al-sana’i’ ft tarab al-shara’i’, vol. 5, pp. 133-31o.Beirut, 1974.
Sarakhsi, Muhammad ibn Ahmad al-. “Kitab al-buyu`.” In Kitab al-mabsut, vol. 12, pp. 1o8-219, and vol. 13, pp. 2-199.Beirut, [197-].
Modem Private Compilations of and Commentaries on the Law of Contract
Al-Kashif al-Ghita’, Muhammad al-Husayn. Tahrir al-majallah. 2 vols. Nahaf, 1940-1943.
Qadri Muhammad. Murshid al-hayran ild ma’rifat ahwal al-insan.Cairo, 1983.
Qari, Ahmad ibn `Abd Allah al-. Majallat al-ahkam al-shar`iyah. Edited, with commentary, by `Abd al-Wahhab 1. Abu Sulayman and Muhammad 1. A. `All. Jeddah, 1981.
Modem Writings on the Law of Contract
Chehata, Chafik. Theorie generale de [‘obligation en droit musulman hanifite (1936).Paris, 1969.
Linant de Bellefonds, Yvon. Traiti de droit musulman compare. Vol. 1.Paris, 1965.
Mahmasani, Subhi. Al-nazariyah al-`dmmah lil-mujibat wa-al-`uqua ft al-shar’ah al-Islamiyah. 2 vols.Beirut, 1948.
Rayner, Susan E. The Theory of Contracts in Islamic Law.London, 1991.
Sanhuri, `Abd al-Razzaq al-. Masadir al-haqq ft al fiqh al-Islami. 6 vols.Cairo, 1954-1959
Sanhuri, `Abd al-Razzaq al-. Al-wasit ft sharh al-qanun al-madani. 12 vols.Cairo, 1952-1970.
The reader may also consult several important modern codes of obligations and contracts, for instance, the Tunisian Majallah (19o6), the Moroccan Code of Obligations and Contracts (1912), the Egyptian Civil Code (1949), the Jordanian Civil Code (1976), and the Yemeni Civil Code (1992). The Ottoman Civil Code, Majallat al-ahkam al`adliyah (1879-1886), is available in several English translations, notably by C. A. Hooper, The Civil Law of Palestine and Trans Jordan, 2 vols. (Jerusalem, 1933-1936)
CHIBLI MALLAT

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CONTRACT LAW