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Law Notes Islamic Law Notes

Contract Law Notes

Updated Contract Law Notes

Islamic Law Notes

Islamic Law

Approximately 351 pages

Islamic Law notes fully updated for recent exams. These notes are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by the list of files below. See if you like them by referring to the samples below....

The following is a more accessible plain text extract of the PDF sample above, taken from our Islamic Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Aspects of contract law:

: Agreements- in writing

: Upholding promises

  • Promise: great deal of importance placed on promise, very important to fulfil that promise. Legal obligations within the promise- applying Uqdh. It’s all about exchange in that sense.

: Law of obligations – as a result of the exchange of promises in the contract

: Exchange

Three primary consideration of contract:

  • Formation,

  • Unjust enrichment/interest

  • Uncertain contracts

What is a contract? – Commercial dealings and agreements in a commercial context, promises made by parties in exchange for another promise – notion of promise, if a promise has been made, its considered very important to fulfil that promise.

What is contract law? – It’s a declaration of exchange on the basis of an agreement in its narrow sense and in its wide sense, its any statement of words to perform a duty. One particular view of an academic is that contract law ensures that any promise made must be enforceable.

Why have laws on contract? - It is essential to prevent fraud and to ensure certainty. In many ways the answer to the question is central to the notion of why we need law and its importance. Certainty in knowing what you have agreed to is one of the key aspects of a contract. It ensures that rights under a contract are efficiently upheld and also that economic activity is regulated. It’s a means to an end in itself in that having these rules reinforces the sanctity of promises. Where a promise is made it must be upheld.

Introduction

  • ‘TIJARAH’: Arabic term which describes ‘trade and commerce’ – this constituted an important area of economic activity of Islamic society.

  • The importance of Trade

  • Many Quranic Injunctions encouraging Muslims to engage in lawful trade, and Allah wanting Muslims to trade and travel

: Mention trade as seeking the “fadl [bounty] of Allah” - highlighting the fact that success and wealth in this world is a reward from Allah

: “whoever coveys food from one city to another and sells it at its price on that day will have the rank of the martyrs with Allah” - Allah regards as equal to a mujahidun and those earning halal livelihoods in order to spend it on themselves and their dependents

: “He sends the winds bearing good news to give you a taste of His mercy and to make the ships run by His command, and to enable you to seek His bounty so that hopefully you will be thankful” (Surat ar-Rum 30:46) - analogous to the wind for the age of sailing ships is the bounty of Allah in creating the oil that drives contemporary forms of transport

  • Trade is of fundamental importance, constituted an important area in the financial activities of Arab society

: Prophet the founder of Islam was a merchant himself, engaged in a number of trade related activities e.g. his travel to Khadija [first wife] to assist her in commerce, Prophet is a manifestation of the ideal role.

Body of rules concerned with the enforcement of obligations.

  • Moral Dimension

  • It is a moral dimension set by the primary sources which is the essence behind the rules that apply to freedom of contracts

: “…do not consume one another’s property by false means, but only by means of mutually agreed trade” (Surat an-Nisa 4:29) - Quran emphasises mutual agreement in the trade and thus there should be no dissatisfaction or disagreement between the parties in a commercial transaction

: “…nor offer it to the judges as a bribe, trying through crime to knowingly usurp a portion of other people’s property”

: “whoever acquires unlawful wealth and then gives it away as sadaqah will have no reward, and he will have to bear the burden [of his wrong doing]” (Ibn Khuzaymah,Ibn Hibban and al-Hakim from Abu Hurayrah cited in Kanz al-ummal)

: Prophet said: “Allah does not erase evil by means of evil, but He erases evil by means of good. Dirt does not erase dirt” Ahmas, al-Hakim in al-Mustadrak, and al-Bayhaqi in Shu’ab al-iman from Ibn Mas’ud, cited in Kanz al-ummal)

  • Both the Quranic injunctions and the further explanations given by the Prophet, it becomes clear that Divine laws strike at the very root of modern capitalism. They enjoin moral rules upon man in his earnings and spending and hold him responsible for the well-being of his fellow man. Hoarding is thus condemned, usury forbidden, extravagance denounced and moderation enjoined. Wealth is not to be devoured in vanity but is to be developed by fair means and through generosity and trade so that it is used for the welfare of the community, hence there will be no need for inventions such as socialism.

  • The Quran thus enjoins the cardinal values of equity, justice, mutual co-operation and self-sacrifice for organising the socio-economic fabric of Islamic society.

: Prophet, many traditions and records recording his honesty and morality, with him being the manifestation of the ideal role in relation to merchant activity

The law of tort doesn’t really have distinct body of law but is a part of Islamic law.

  • Meaning of Trade

  • Exchange of goods i.e. buying and selling

  • Can be either monitory consideration or goods alike

  • Men and women alike are allowed to engage in lawful trade in the Shari’ah

: Hadith: ‘men and women are mentioned as selling to and buying from one another’

: All are equally entitled to trade, hence while a transaction is being carried on with one man and an agreement has been reached, another should not intervene – Prophet said: “Do not let any of you bid against each other” (Al-Muwatta, Book 31, No.31.44.96)

  • Contractual obligations

  • Extensive body of rules concerned with the performance of contractual obligations.

Law of Contract

Introduction of Terms:

  • Arabic word for contract: ‘Aqd’

  • Literally means an ‘obligation’ or a ‘tie’

: an act of ‘putting a tie to a bargain’ - thus when two parties enter into a contract it is called ‘in’iqad’ i.e. the joining or tying the offer and acceptance together

Union of the decleratin of one of the contracting partie with that of the other reflecting...

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