Sales and contracts in early Islamic commercial law

Abstract

This study deals with the early development of Islamic contractual and commercial law.

The Introduction presents the Arabian commercial background during the time prior to the advent of Islam to show the historical sequence and the economic phenomena, especially commercial, of pre-Islamic Arabia, which gave rise to the development of Islamic commercial law. In this part, explanations are also made on the basis of the Qur'änic injunctions on commerce and trade and the commercial life of Muslims. Theoretical issues concerning the concept of sale and the scope of this study are also discussed.

CHAPTER I deals with moral and ethics in trade. This chapter includes the encouragements, discouragements and prohibitions in commercial transactions.

CHAPTER II gives the management and modes of the market and its classifications and voidable contracts.

CHAPTER III risk (al-gharar) in sale and permissible sales are discussed. It comprises (of) an inquiry into risk in sale, including the definition of al-gharar (risk in sale), the rules to elude al-gharar and the gharar transactions. This chapter also examines the permissible sales, i.e. sale by advance (al-salam) and sale of fresh dates by estimation (bay' al-"aräyä).

CHAPTER IV covers the restrictions on sales. It is restricted to a discussion of sale of excess water and -xiother communal properties, exchange of animals for animals on credit, exchange of precious metals and foodstuffs on credit, sale by an agent and the capital specified when paying and sale by a written document (al-bay' bi al-sakk).

In CHAPTER V, partnership in business transactions and pre-emption (al-shuf'a) are dealt with. It analyses al-mudäraba (dormant partnership) and its quasi-contracts, al-sharika (mercantile partnership) and al-shuf'a (preemption).

CHAPTER VI studies loans, deposit (al-wadl'a) and interdiction (al-hajr), in particular al-gard (loan of fungible objects for consumption), al-'äriyya (loan of non-fungible commodities), al-wadi'a (deposit), al-hajr (interdiction) and their early legal developments.

In CHAPTER VII, the early legal development of suretyship (al-kaff la) and pledge or security (al-rahn) are discussed and examined.

CHAPTER VIII discusses the contract of hiring (al-ijära) and pay in return for work (al-ju'ä1a), focusing on the embryonic evolution of their legal expansions.

Finally, CHAPTER IX covers juridical settlement of disputes, amicable settlement (al-sulk) and extinction of an obligation which includes wäla (assignment, of debts and sale by bill of exchange (bay' bi al-suftaja).

The conclusion summarizes and resolves the various discussions in each chapter of the thesis.