Freedom of Contract, the Doctrine of Frustration, and Sanctity of Contracts in Sudan Law and Islamic Law1

Abstract

In any account of the legal system in the Sudan, two points must be made clear at the outset: (1) Where references are made to the Islamic Shanta law, it should be understood that this reference is to the Hanafi school of law) for it is that school which is applied by the Shari'a Court Division of Personal Status in the Sudan. Most of the doctrines relating to civil transactions in the Sudan, whether incorporated in the Civil Law 1971 or the Law of Civil Transactions 1984,2 stem from the Hanafi school of law which was introduced. Interestingly enough, howe^7er, the majority of Sudanese belong to the Maliki school which prevails in certain religious affairs.3 The co-existence of these two systems resulted from historical circumstances: the Hanafi law had been previously codified in the nineteenth-century Ottoman Majalla which had applied throughout the Turkish Empire for many years except principally, in Egypt and the Sudan. (2) The Sudan Law of Contract 1974 was principally a codification of the Common law doctrines and principles as applied in the Condominium period and thereafter until 1971. Thus, English law will be referred to as the origin of the Law of Contract 1974, and its voluminous body of precedents will be relied upon to compare the doctrines of freedom, sanctity and frustration of contracts.