Remedies for Breach of Contract Under Islamic and Arab Laws

Abstract

Breach of contract is generally described as the unjustifiable refusal or failure by one party to a and enforceable contract to implement any of the express or implied duties incumbent on that party under the contrace, normally by refusing to perform, failing to perform, performing late or performing badly. Breach of contract purports the existence of a lawful and enforceablecontract, the existence of a debtor under that contract and a non-performance or a performance contrary to the one expected provided it is attributable to that debtor. Under Positive law,l a person injured by a breach of contract is entitled to damages for the loss he has suffered. The object of an award of damages for breach of contract is to place the plaintiff, so far as money can, in the same situation as if the contract had been performed. In certain circumstances the injured party may obtain an order for the specific performance of the contract, or an injunciion to restrain its breach.2 Are there similar remedies and objectives under the Shari'a and Arab laws? Is the concept of daman al-'aqd (contractual warranty), one of these remedies or the one and single remedy for cases of breach of contract as one contemporary author seems to imply .3 An investigation into the concept of daman al-'aqd widl delineate its scope of applicaiion and will reveal its remedial capability. But first a few words ought to be said about contracts.