Particularity of the Contract's Subject-Matter in the Laws of the Arab Middle East

Abstract

and automatic. However, when there is an obligation of execution, the article at the momeIlt of the conclusion of the contract does not yet exist, which is why this obligation is accepted only by way of exception in Islamic law and this for the demands of economic activity; in this case the penalty for failure to fulfil the obligation is in Islamic law limited to the compensation to be paid for the damage done; that is to say, that the compensation will be no more than the equivalent ' Exlcyclopedie Dalloz, Notion d'objet, Contrats et cornventions, No. 932. 2 Mazeaud, Lepons dc droit civil Obligations, T. II, 1st vol., 8th edn, Paris, Aiontchretien, 1991, p. 116 et seq. 3 J. Grbonnier, Droit Civil, Les Obligations, T. IV, Pans, PUF, 1993, p. 116; and Overstake, Essai de classification des contrats speciaux, Paris, LGDJ, 1969, p. 23 et seq. 4 For the Max-Planck Institute of Hamburg, Les Conditions de validiS au fond des contrats de vente'v, Annuairc Unidroit, Hamburg, 1966, p. 383 et seq. 5 Linant de Bellefonds, L'autonomie de la volonte aw droit musulman, Revue internationsle de droit compare, Paris, 1958, p. 90 et seq. 6 Mahmassani, An-Nazanyat al-Amal li-Imugibat wa l-uqud>', Beirut, 1948, p. 320 et seq. 7 Ibn-Taymiyya, Fatawa, T. 3, Cairo, 1326 Hegira, p. 334. 8 Moughrabi, Ahkam al aqdfi al-shari 'd al-islamiya, Beirut, A1 Maktabat al-Hadithat, 1988, p. 35. 9 Mahmassani, op. cit., p. 322 et seq. This content downloaded from 207.46.13.52 on Fri, 21 Oct 2016 05:52:08 UTC All use subject to http://about.jstor.org/terms PARTICULARITY OF THE CONTRACT'S SUBJECT-MATTER 333 value without any interest, this bemg prohibited by Islamic law.l° An obligation to do anything is possible in Islamic law only by way of exception, whereas according to Western law when the debtor undertakes to do certain work or to render a certain service, the penalty for failure will be compensation for damage together with interest.ll Such a penalty is not possible in Islamic law; interest being excluded, the judge will apply other coercive measures such as habs (imprisonment), for example. However, in the case of the obligation to give anything, the rules relating to the object so insisted on by Islamic law are easily applicable. The requirement of the existence of the thing at the moment of the conclusion of the contract is something possible in the case of the obligation to transfer possession; the penalty for failure tO execute will be simply the nullity of the contract. The purpose of this prescription is to forewarn the contracting parties about any possibility of the aleatory element, cause of illicit gain and of imbalance of the benefits. Such an element of chance would perturb the contract and might by the very fact render it liable to a penalty even going so far as nullity. Here is the singularity of the notion of subject-matter in Islamic law in relation to Westem law. In conclusion, all the restrictions concerning the object of obligation tend to restrict the margin of the parties' contractual liberty so as to favour equity and