Classification of Contractual Agreements in Comparative and Islamic Jurisdictions: Does it Make Any Sense?
Abstract Comparative legal systems differ in the organization of the manifestation of parties’ expressions when making legal transactions where an external action does not reflect the real intention of this party. Most jurisdictions, including Islamic law, follow the objective theory of agreements while the Conterminal legal system adopts the subjective approach. Despite the fact that many scholars spent much efforts to clarify this classification, the importance of this classification may be modest; these legal systems organize some basic doctrines, with regard to the formation of a contract (namely: the revocability of offer, the need for communication of acceptance and the rules of interoperation), in a manner that may contradict with its general theory of making agreement. In other words, the organization of these doctrines has very little significant differences in result between these legal systems. Islamic law has the same result as well. This article aims at explaining these doctrines and differences.
Islamic Commercial Law: An Analysis of Futures and Options
Part One - Futures Trading in the Market Place: The Futures Contract Uses of Futures Futures Contracts and Conventional Contracts The Futures Market Risk Reduction Strategies The Futures Markets of Alexandria and Kuala Lumpur. Part Two - Futures Trading - A Discourse in Fiqh: The Shari'a Perspective on Commercial Transactions ('Mu'amalat') Uncertainty and Risk-Taking (Gharar) The Subject-Matter of a Sale 'Sell Not What Is Not With You' Sale Prior to Taking Possession ('Qabd') Debt Clearance Sale ('Bay' al-Dayn bi'l Dayn') Deferred Sale ('Bay' al-Mu'ajjal') Speculation or Gambling A Summary of Modern Opinion. Part Three - Options: A Market Analysis of Options Options ('al-Ikhtiyarat') from the Islamic Legal Perspective.
Handbook of the law of evidence
Professor Tracy's preface does not make it clear for whom this book is primarily intended. He says that the functions of "the one-volume treatise have been to serve as a text for those undertaking to study law by the textbook method . . ., to serve as collateral reading by those studying evidence by the case method, and to serve the interests of the practicing bar." For the bar, he continues, such a treatise fills two needs: "one, the needs of the young attorney who must have in his library some book on evidence, but who cannot yet afford to purchase one of the exhaustive works; the other, to serve the interests of the busy trial attorney, as a refresher before going into court, or for quick investigation of a problem arising in the middle of a trial." This certainly seems to imply that the book is directed to law students, among others, although it is to be noted that the author concludes his preface by expressing the hope that the book will be well received by the "practicing bar." The point of all this is that while it is possible that the book has value for the trial lawyer as a "refresher" (although, as will be pointed out, the treatment of many of the rules of evidence is very sketchy and superficial), it seems to me quite clear that it is not suitable for law school or law student use, because of its general and superficial character and because it is demonstrably incomplete and inaccurate in some particulars. It appears correct to say that in his effort to condense and simplify, the author has over-simplified and over-generalized to the point that in some areas the result may very well mislead any but the already well-informed student of the subject. I certainly do not mean to say that all parts of the book are subject to this criticism. Much of it is good and there are passages which are excellent. For example, the chapters on judicial admissions, burden of proof and presumptions, documentary evidence, and the parol evidence rule, while rather general and elementary, seem to me adequate in an abbreviated book of this type. Also, the book contains an excellent condensation of the rules regulating the admissibility of the record of a past recollection, an unusually lucid exposition of the problem of the admissibility of intraorganizational reports and a convincing protest against the "res gestae" terminology. But the book is spotty. As to the matter of over-generality, the following instances are illustrative. In the treatment of the Dead Man's Statute (pp. 123-5), no attempt is made to identify the traditional justifica-