The buyer's remedies for seller's non-conforming delivery : a comparative study under English law, the 1980 UN Convention on Contracts for the International Sale of Goods and Shi'ah law
The purpose of the thesis is to examine Shiah law, as an undeveloped systen-4 in order to identify if it could be applied to modem sale transactions. The focus is on remedies in which Shiah jurists have done a great deal of work. The subject is first examined under English law and the UN Convention on Contracts for the International Sale of Goods (as two developed systems) to identify the issues which have to be dealt with and then under Shiah law in depth. An extensive examination shows that current Shiah law suffers from substantive gaps and uncertainty. It is suggested that the current situation is due to lack of applying an efficient methodology. Instead of dealing with the legal rules in respect of concrete issues, Shiah jurists tend to deal with traditional as well as hypothetical cases to derive further detailed rules. To present a sensible picture of this system, it is suggested that the law should be analysed in the light of studying developed systems. Relying on this method, attempts are made to systematise the relevant rules and answer the various questions these two modem systems deal with. Shiah law is then compared with English law and the Convention to highlight the existing gaps in Shiah law and to assess how it could be applied to modem sales. Comparative assessment of the three systems shows that while in English law primacy is given to damages and specific performance is rarely awarded, the Convention gives significance to both. Similarly, English law seems to permit termination more easily than the Convention. But unlike the Convention, it does not recognise price reduction as a separate remedy. Overall, it is shown that Shiah law is closer to the Convention than to English law. It attaches significance to both damages and specific performance, and entitles the buyer to reduce the contract price, but permits termination more easily than the Convention and less easily than English law. It is concluded that because of substantive gaps and uncertainty in current Shiah law it is not an appropriate system to govern modem sale transactions, but if the suggested methodology is applied it could be developed and fill in the gaps.
CONDITIONS IN THE LAW OF CONTRACT
In order to understand any legal system it is necessary to consider the purely physical facts of life apart from the legal relations that are consequent upon such facts. Legal relations are merely mental concepts which are useful in enabling us to foresee the physical facts of the future. Disregarding the multitudes of facts that have no effect whatever upon existing legal relations, those that remain-the operative facts-must be considered and classified. In any case, the best method of procedure is to consider each operative fact separately, and in chronological order, and to determine the legal relations that exist after such single fact. Thus: Fact one: A says to B, "If you will agree to pay me $ioo for this horse you may have him and you may indicate your agreement by taking him." This is a physical fact, called an offer, consisting of certain muscular acts of A (his spoken words) producing certain physical effects in B. The legal relations immediately following are (in part) as follows: B now has the privilege of taking the horse and A has no-right that he shall not; B has the power of making the horse his own by taking him, with the correlative liability in A to the loss of his ownership; no new rights or duties are created and no new immunities or disabilities; by giving B a privilege and a power, A has lost a previous right and a previous immunity. Fact two: B says to A, "How old is the horse?" This fact operates to create no new legal relations whatever. The operative legal effect of fact one is still intact. Fact three: A, knowing the horse to be 12 years old, replies, "6 years." This false representation changes the character of B's power by adding to it; he still has the power to make the horse his own by accepting the offer, but now his acceptance will create in addition the power to "rescind" on discovery of the fraud. Fact four: B takes possession of the horse. This is the fact called acceptance. It operates at once to create in B all those multitudinous legal relations that are called "ownership" or "title" and to extinguish the ownership of A; also to create a right in A as against B and the correlative duty in B to pay $ioo. Because of fact three, B also has the power to restore the legal status quo by tendering the horse back.
Uniform Law for International Sales under the 1980 United Nations Convention
I: Overview. 1. The 1980 Convention: A Brief Introduction. 2. Salient Features of the 1980 Convention. II: Commentary. Part I: Sphere of Application and General Provisions (Arts. 1-13). Part II: Formation of the Contract (Arts. 14-24). Part III: Sale of Goods (Arts. 25-88). I. General Provisions (Arts. 25-29). II. Obligations of the Seller (Arts. 30-52). III. Obligations of the Buyer (Arts. 53-65). IV. Passing of Risk (Arts. 66-70). V. Provisions Common to Obligations Seller and Buyer (Arts. 71-88). Part IV: Final Provisions.