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Islamic Law of Contracts and Business Transactions,817435459X,9788174354594

Islamic Law of Contracts and Business Transactions

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Book Information

Publisher:Adam Publishers and Distributors
Published In:2010
ISBN-10:817435459X
ISBN-13:9788174354594
Binding Type:Hardback
Weight:1.69 lbs
Pages:pp. [ii] + xvi + 357, Index, Biblio.

The Title "Islamic Law of Contracts and Business Transactions" is written by Muhammad Tahir Mansuri. This book was published in the year 2010. The ISBN number 817435459X|9788174354594 is assigned to the Hardback version of this title. This book has total of pp. [ii] + xvi + 357 (Pages). The publisher of this title is Adam Publishers and Distributors. We have about 677 other great books from this publisher. Islamic Law of Contracts and Business Transactions is currently Available with us.

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Contents

Preface
Foreword

Part A : GENERAL THEORY OF CONTRACTS :
Chap. I : General Principles of Contracts and Transactions in Islamic Law
Chap. II : Meaning of 'Aqd and Other Similar Terms :
1. Mithaq
2. 'Ahd
3. 'Aqd
4. Definition of 'Aqd (Contract)
5. Preferred Definition

Chap. III : Element of Contract : Form (Sighah) :
1. Different Kinds of the Form (Sighah)
2. Conditions Necessary for the Form (Sighah)
3. Causes of Cancellation of the Offer

Chap. IV : Elements of Contract : Subject - Matter :
Conditions of Subject-matter :
1. Legality of Subject-matter
2. Existence of Subject-matter
3. Certainty of Delivery
4. Legality of Object and Underlying Cause

Chap. V : Elements of Contract : Contractual Capacity of Contracting Parties :
1. Capacity of Execution
2. Circumstances that Affect Legal Capacity :
i. Junun (Insanity)
ii. 'Atah (Lunancy or Partial Insanity)
iii. Forgetfulness
iv. Safah (Weakness of Intellect)
v. Death-illness
vi. Intoxication
vii. Taflis (Bankruptcy)
viii. Coercion

Chap. VI : Delegated Authority :
1. Contract of Agency (Wakalah) :
i. Conditions of Agency
ii. Subject Matter of Agency
iii. Termination of Agency

2. Acts of Fuduli (Unauthorized Agent)
3. Guardianship and its Kinds :
i. Condition's of Guardian
ii. Rights and Duties of Guardian

Chap. VII : Sahih, Fasid and Batil Contract :
1. Sahih (Valid) Contract
2. Kinds of Sahih Contract
3. Fasid (Irregular) Contract
4. Causes of Fasid Contract (Irregularity)
5. Batil (Void) Contract
6. Causes of Butlan (Invalidity)

Chap. VIII : Extrinsic Causes of Invalidity : Gharar (Uncertainty) :
1. Definition of Gharar
2. Forms of Gharar
3. Effects of Gharar on Contracts
4. Insurance : A Modern Contract of Gharar
5. Islamic Alternative to Insurance Business

Chap. IX : Extrinsic Causes of Invalidity : Riba (Usury) :
1. Literal and Technical Meaning of Riba
2. Riba in the Qur'an
3. Riba in the Sunnah
4. Kinds of Riba
5. Rational Underlying the Prohibition of Riba Al-fadl
6. Underlying Causes of the Prohibition of Riba Al-fadl
7. Some Other Forms of Riba
8. Indexation of Loans and Riba

Chap. X : Defect of Consent and its Effect on Contract :
1. Mistake
2. Fraud :
i. Tasriyah
ii. Tanajush
iii. Ghabn Fahish
iv. Talaqqi Al-rukban
v. Inflated Price in Trust Sale
vi. Tadlis Bi Al-'ayb (Fraud with Defect)
vii. Coercion

Chap. XI : Extrinsic Conditions and their Effect on the Contract :
1. View Point of Zahiri Jurists
2. View point of Hanbali Jurists
3. View Point of Hanafi, Shafi'i and Maliki Jurists
4. Irregular Conditions
5. Void Conditions

Chap. XII : Islamic Law of Options (Khiyarat) :
1. Khiyar Al - shart
2. Khiyar Al - ta’yin
3. Khiyar Al - ru'yah
4. Khiyar Al - 'ayb

Chap. XIII : Classifications of Contracts :
1. Classification of Contracts with Regard to Function and Purpose of Contract
2. Classification of Contracts with Regard to Time of Completion of Contract

Part B : SPECIFIC CONTRACTS :
Chap. XIV : Contract of Sale :
1. Definition of Mal (Property)
2. Classifications of Mal
3. Conditions for Validity of Sale
4. Some Expressly Prohibited Sale Contracts
5. Kinds of Sale Transactions :
i. Muqayadah
ii. Bay' Mutlaq
iii. Sarf :
a. Definition of Money
b. Legal Position of Paper Money

iv. Salam Contract :
a. Conditions of Valid Salam
b. Modern Applications of Salam

v. Istisna' :
a. Difference between Istisna' and Other Allied Contracts
b. Conditions of Istisna'
c. Modern Application of Istisna'

vi. Murabahah :
a. Remedies for Swindled Purchaser
b. Conditions of Murabahah
c. Expenses in Relation to Murabahah
d. Modern Applications of Murabahah
e. Murabahah Practices in Pakistan and their Shari'ah Appraisal

vii. Bay' Mujjal (Credit Sale)

Chap. XV : Contract of Ijarah (Leasing) :
1. Definition
2. Features of Ijarah
3. Legitmacy
4. Kinds of Ijarah
5. Conditions of Ijarat Al - ashya
6. Conditions of Ijarat Al - ashkhas
7. Modern Applications of Ijarah
8. Ijarah in Islamic Banks

Chap. XVI : Contract of Musharakah :
1. Definition
2. Definition of Partnership in English Law
3. Concept of Company in Modern Law
4. Legitimacy
5. Kinds of Sharikah
6. Sharikat Al-milk (Co-ownership)
7. Rules Regarding Co-ownership
8. Sharikat Al-'aqd (Contractual Partnership)
9. Kinds of Sharikat Al-'aqd
10. Condition of Contractual Partnership
11. Entitlement to Profit
12. Sharikat Al - amwal
13. Specified Conditions of Sharikat Al-amwal
14. 'Inan Sharikat Al-amwal
15. Rights of Partners in 'Inan
16. Formation of 'Inan
17. Dissolution of 'Inan
18. Sharikat Al-mufawadah
19. Mufawadah in Maliki Law
20. Legitimacy of Mufawadah
21. Conditions of Mufawadah
22. Rights and Duties of Partners
23. Dissolution of Mufawadah
24. Sharikat Al-amal
25. Sharikat Al - wujuh
26. Modern Forms of Partnership
27. Project Financing
28. Financing of a Single Transaction
29. Redeemable Musharakah

Chap. XVII : Contract of Mudarabah :
1. Definition
2. Legitimacy
3. Elements
4. Conditions Concerning Partner
5. Conditions Relating to Capital
6. Conditions Relating to Profit
7. Types
8. Permissible Dispositions of Mudarib
9. Dissolution of Mudarabah

Chap. XVIII : Contract of Kafalah (Surtyship) :
1. Definition
2. Elements of Kafalah
3. Kinds of Suretyship
4. Contract of Guarantee in English Law
5. Rules of kafalah
6. Legal Effects of Suretyship
7. Rules Relating to Surety
8. Rules Relating to Subject - matter
9. Legal Effects of Suretyship

Chap. XIX : Contract of Hawalah (Assignment of Debt) :
1. Definition
2. Validity of Hawalah
3. Effects of Hawalah
4. Kinds of Hawalah
5. Rights and Duties of Parties
6. How is Hawalah Concluded?
7. Circumstances Under which Hawalah is Terminated
8. Comparison between Hawalah and Negotiable Instruments
9. Hawalah and the Concept of Assignment in English Law

Chap. XX : Contract of Rahn (Pledge) :
1. Definition
2. Legitimacy
3. Legal Status of Pledged Property
4. Conditions of Pledged Property
5. Conditions of Claim
6. Maintenance of Pledged Property
7. Benefit from Pledged Property
8. Legal Consequences of Pledge

Preface

The injunctions of the Shari'ah are based upon the interest of man both here and in the hereafter. The aim of the Shari'ah is to preserve religion, life, intellect, progeny and property. These are the five basic interests of man. They are also known as the maqasid al-shari'ah (objectives of the Shari'ah)

Preservation of property, being one of the fundamental interests of man and a basic objective of the Shari'ah occupies a vital and significant place in Islamic legal philosophy. It regards the property of a person as sacred and inviolable as his life and honour. The Qur'an forbids the unlawful devouring of property by a believer. This includes prohibition against theft, usurpation, embezzlement, bribery and all other unlawful and impermissible means of acquiring wealth. The Qur'an also prohibits usurious transactions, which bring undue and unjustified enrichment to one party at the cost of the other party. Contracts involving gharar and aleatory transactions have also been strictly prohibited in the Qur'an and the traditions of the Holy Prophet (s.a.w.s.) Aleatory or gharar transactions comprise those transactions where both parties or either of the parties to the contract becomes a victim of excessive ignorance with regard to the existence, acquisition, genus, quality, and other necessary attributes of the subject matter. Such ignorance and uncertainty may lead to dispute and litigation among the parties. It also includes uncertainty and lack of knowledge about the material terms of the contract. It is, thus, the requirement of a valid transaction that the object of the obligation be specifically determined so as to avoid exorbitant gharar.

The Holy Prophet (s.a.w.s) also forbade certain market practices such as withholding of food items in times of scarcity, collusion to bid up prices, purchase from the farmers at lower prices keeping them ignorant about market prices, sale of something which one does not possess and the sale of food stuff before taking it into possession.

Thus, the Qur'an and the Sunnah embody some very basic and important rules with regard to transactions. The purpose of all such injunctions is to preserve property and the material wealth of the people.

It is worth mentioning here that the Qur'an and the Sunnah have not laid down a detailed law of contracts and transactions. They have only provided broad guidelines for economic and commercial activity. It is the fuqaha', who after taking guidance from the principles provided by the Qur'an and the Sunnah developed a comprehensive system of contracts and transactions. They classified contracts into different categories with regard to their objects and principal features and assigned them different nomenclatures. They discussed the elements and conditions of contracts together with the other necessary characteristics and attributes. They exercised ijtihad in the sphere of transactions and framed new rules according to the need of the time.

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