A comparative study of contractual obligations in common law, civil law and shariah

Abstract

This thesis is a comparative study of the contractual obligations under the common law civil law, and Shar?ah. The law relating to contractual obligations had evolved overwhelming controversies in legal writings and practices over centuries. As a result, the law of remedy came to protect the contracting parties from any harm or loss that may result from the breach of contractual obligations. This is by the way of penalising the breaker and compensating the performing party. Hence, the thesis examines the contractual obligations in a tripartite approach between common law, civil law and Shar?ah. The breach of contractual obligations and their remedies were also taken into account. Furthermore, this study ascertains the area of convergences and divergences between the three families of law. The qualitative research methodology is utilised and the data gathered from the valuable literature of the Muslim and western writers were employed to accomplish the study. The research revealed that the contract law at the conceptual level is substantially similar in common law, civil law and Shar?ah to the extent that the writers of Islamic law of contract do not explore, especially in the area of remedies for breach of contractual obligations, beyond the boundaries of common law and civil law systems. However, the differences can be found in the application of the remedies. Also, similarity can be ascertained in the essential requirements for the formation of contractual obligations and the ways by which a contractual obligation can be discharged. Nevertheless, the common law stands differently with regard to doctrine of consideration as an inevitable requirement. Thus, this thesis suggests a method which can be employed to harmonise the area of divergence among these systems of law. Similarly, in the aspect of remedies for breach of contractual obligations, the research recommends that, in a scenario whereby damages are the only remedy to remedy anticipatory breach of contractual obligations, it should be on the ground of non-commitment of the breaker and not on the ground of expectation interest of performing party.