Force Majeure in Islamic Law of Transaction: A Comparative Study of the Civil Codes of Islamic Countries
Abstract: This paper attempts
to shed lights on the performance of the obligations to a valid contract that
can be frustrated by events beyond human control. Such events may have
considerable impact on various designated legal principles and rules which is
widely known as force majeure. The doctrine of unforeseen circumstances in
contemporary legislation, on the main, is expressed in the same term which
understandably as result of the origin
derivation of the French law le theorie
de l’imprévision. Although it is true that there is no such general principle of force majeure in classical Islamic law, the
author argues that significant efforts have been made in synthesizing both the
Islamic and Western law concepts. Accordingly,
despite the fact that the traditional Islamic legal system has its own mechanism
to deal with such events at the time of contract, to a certain extent, it has
influenced its contemporary form of the
concept of intervening conti-ngencies
(naz}ariyyat al-jawa>’ih}) as reflected in the Civil Codes of the Arab states. In addition, in response to
the exigencies of the ever-increasing problems of modern life which brings with
it alien concept, force majeure does not contradict with the provisions of the
Shari‘ah since the views of Islamic jurisprudents (fuqahâ) can justifiably be
referred to.
Author: Mhd. Syahnan
Journal Code: jpperadabanislamgg130012
