Towards A Better Understanding of Good Faith Concept in Islamic Contract Law (original) (raw)
Related papers
Doctrine of Good Faith in Contracts: A Comparison between Conventional and Islamic Laws
The doctrine of good faith is a vital issue amongst the contractual issues of this period .It is considered a main goal of every recognized law of contract system to be promoting good faith as well as fair dealing in forming and performance of contracts. Basically, it has been a common argument in supporting the notion of good faith that it helps in addressing bad faith manner in a clear and direct conduct, allow the law to safeguard the realistic anticipations of women and men as well as encourage a philosophy of contractual collaboration that would lead to economic efficiency. This study looks into the concept of good faith from both the conventional law and Islamic law (Shariah) to find to what extent both laws comply with each other. The study is doctrinal which utilizes descriptive approach of qualitative research methodology which relies on secondary data in form of text books, journals, newspapers, related websites etc. The study found that both the conventional law and Islamic law support the principle of good faith. Shariah recognized the principle of good faith as it asks the parties in a contract to abide by the requirement in various stages of the contract, especially sale contract. Thus, the concept of good faith should have the same application in both Islamic and conventional jurisdictions.
Arab Law Quarterly, 2021
Unlike civil law jurisdictions, the good faith principle in Islamic law is a notion not directly discussed, the foundations of which this article seeks to root out through an analysis of related, but distinct, Islamic law doctrines. As such, since Islamic law is a significant source of codification and adjudication in many Islamic countries, the perspective of some MENA countries as well as Iran towards good faith is also explored. In practice, courts and tribunals could invoke the good faith principle where Islamic law or Islamic-based laws govern the contractual relationships. This article contends that good faith permeates every sphere of a contractual relationship, particularly negotiation under Islamic law.
The United Nations Convention on International Sale of Goods (CISG) is a harmonization of common law and civil law rules relating to sale of goods. Islamic law was not in the consideration of the drafting body, the United Nations Commission on International Trade (UNCITRAL), whereas it is one of the oldest leading legal families of the world. This accounts for a scrutiny of the CISG provisions from Islamic perspective. The present study chooses the principle of good faith, which is one of the general principles that underlie the convention, to compare with its Islamic counterpart. It finds that the principle, in general, and with respect to the formation and performance of contract, in particular, is friendly with Islamic Shari'ah.
Good faith principle of contract law for the islamic banking system
Good faith principle of contract law for the islamic banking system, 2019
The Islamic banking system has attracted the attention of scholars, practitioners, and investors. In the Islamic banking system, the good faith principle may not adequately serve the purpose for which the Islamic banks were set up. This paper is to examine both the present debate and the current practice of the good faith principle of Islamic contract law in banking system. The study uses secondary data procured from published research papers, the Holy Quran, and the Prophetic Sunnah, which embody all tenets of Islamic law. From our findings, the Islamic banking system is more economically efficient. El sistema bancario islámico ha atraído la atención de académicos, profesionales e inversores. En el sistema bancario islámico, el principio de buena fe puede no cumplir adecuadamente el propósito para el cual se crearon los bancos islámicos. Este documento es para examinar tanto el debate actual como la práctica actual del principio de buena fe del derecho contractual del sistema bancario islámico. El estudio utiliza datos secundarios obtenidos de trabajos de investigación publicados, el Sagrado Corán y la Sunnah profética, que incorporan todos los principios de la ley islámica. Según nuestros hallazgos, el sistema bancario islámico es más eficiente económicamente. Palabras clave: banca islámica, Corán, Derecho contractual, principio de buena fe.
Good faith is one of the most discussed topics in the jurists' circle, seen as a key argument in European contract law. Though it is an accepted concept, there is no consensus regarding the role of good faith in modern civil contractual obligations. The purpose of this paper is to analyze the principle of good faith, shedding light on the concept and the description of this principle on Albanian legislation. Good faith is dealt with in its two meanings; subjective and objective, where in the objective sense of good faith is perceived as a method used to dress with moral contractual relations and to mitigate the inequalities that may result from the dogma of parties autonomy. While in the subjective view, good faith may refer to the situation in which a person acts with the confidence that he is acting in accordance with the applicable law or in a situation where a third party seeks protection. The aim of this paper is also to treat the principle of good faith under the optics of Albanian legal system. It is concluded that the doctrine in Albania is not very developed. It should be noted that there is no uniformity in jurisprudence and the debate if good faith can be excluded from the contract remains open.
2020
With the growth of Islamic banking and finance business in many countries nowadays, the legal aspect is very important to be understood by the parties. This is because in Islamic business law, not only the contract becomes law for the parties, but also to be compliant with Islamic teachings. Otherwise it will be null and void that could cause loss to both sides. However, in some Civil Law system countries there might not be clear rules regarding Islamic contract law. Also, in Common Law system countries, with the character of Islamic law which has specific provisions on the law of contracts needs to comply with the rules in practical Islamic business. In addition, the function of the court in finding the law for dispute settlement in Islamic business transactions becomes a necessity. For this reason, it is important to see how are the countries with the Civil Law and the countries with the Common law system applying Islamic business contract law. In This paper will be compared the a...
Islamic Law of Contract is Getting Momentum
The ISBN of the book is 13: 978-981-4253-97-0 and there are a total of 124 pages. The authors of this review article (Dr. Jalil and Mr. Khalil) have reviewed the book to find its merits and demerits and finally have given some suggestions for its further improvement. The authors have also written some points on the Islamic law of contract which they think necessary for the readers (who are not exposed to the Islamic law of contract) to understand better on the Islamic law of contract as well as for a better insight on the relevant legal points involved therein.
The Promise in the Contract of Islamic Law: A Special Focus on Promise Contract
Mediterranean Journal of Social Sciences, 2016
Hibah is one of the voluntary contracts in the Islamic law. Transferability through hibah requires the rigid conditions regarding the ownership status of the hibah property. However, these conditions can be avoided by using the principle of the promise of hibah. The main objective of this article is to highlight "promise of hibah" concept as an alternative instrument of estate/property planning existing in Islamic teaching. This article explains about the promise of hibah from the perspective of Islamic law. The discussion began with a review of the status of 'promise' in the matter of the contract. Hence the promise of hibah concept, formation and implementation was discussed by taking into account the views of scholars from various schools of thought in the Islamic law and the current practices in Muslim countries. This research use content analysis approach where data is gathered from several primary sources in Islamic law. In terms of implementation of hibah concept, several law existing in Islamic country that has codify hibah in their law is used as reference.
ILC 2017 - 9th UUM International Legal Conference, 2018
One of the regulations established by the community is on how people fulfill their needs by having the goods belong to other people through legal means. Islamic laws have regulated the matter in one of the studies called mu'āmalāt. Thus, Islamic laws build the concept with philosophical foundation known as maṣlaḥāh. Besides, one of five purposes of sharia is to protect the properties. It is related to how human manage their life accordingly, thereby they obtain what they want without offending others. Indeed, they can built mutual relation. Common illegal behavior within financial transaction degrades people's moral and wealth. Later on, strict regulation is required to reduce or remove economic fraud. Thus, the community can reach the prosperity condition. To know the principles of finance from Islamic perspective and to develop it as a living law, the research explains the philosophical foundation of contract. The paper used qualitative method and Uṣūl Fiqh approach to generate the legal structure of contract in Islam from the valid sources of Islamic Law.