ISLAMIC LAW OF BUSINESS TRANSACTIONS WITH PARTICULAR REFERENCE TO SALE OF GOODS

Abstract:

In the name of Allah, the Merciful, the Compassionate. This Thesis, “Islamic Law of Business Transactions with particular reference to Sale of Goods”, is a humble attempt from my side to put my contribution, though dismal, along the line of those who have genuine interest to uncover the rich culture of Islamic Law, albeit, in a language other than the Arabic Language (Original Language of the Sharia), praying that Allah, in His infinite Mercy, will forgive our misdeeds and condone our mistakes. The Thesis is only an attempt to state Islamic Law as it relates to Sale of Goods. I should not be seen as blowing any trumpet, but it is the first of its kind. Accordingly, it is hard to free the work from human errors. And as no one person has monopoly of knowledge except Allah alone. I implore readers, in the spirit of Sharia, to take every necessary steps to get proven mistakes corrected and I should be forgiven for my inadequacies. Knowledge, certainly, is not the preserve of anyone. It is for the whole humanity. Those who conceal it will have some questions to answer on the Reckoning Day why they did so. I would not like to be a companion to such people. My belief is that unless a person makes a pronouncement and he is shown to have made a mistake or mistakes, his mistakes will continue to be in him and in any other person he indoctrinates. But once he is made to understand his mistakes, he is fully redressed and encapsuated. He should, on reciprocal basis, admit such mistakes and accept the corrections gratefully. That forms part of culture of learning in Islam. In Chapter one of the Thesis, I found it necessary to give a general introduction, though in brief, on Islamic Law, its sources and gradual development. I also attempted to define Islamic Law of Transactions (MU’AMALAT). I particularly considered the genesis of Islamic Law of Business Transaction in Nigeria and its subsequent development. Chapter Two deals with the subject matter for the contract of Sale Under < Islamic Law. These, principally are two: (a) the goods and (b) the price. I devoted this chapter on the goods alone. I attempted to define goods in Islamic law in comparison with what constitutes goods under the English Law. There is a mild distinction between the classification of goods under Islamic Law and as is provided by the English Law. In Islamic Law all goods m jst pass the validity test before they qualify for merchantable transactions. I have considered such conditions of validity. I have considered things regarded as controversial by many jurists, examples, the position of selling or buying dogs, musical instruments, contaminated oil, trading on gold and silver et cetera. Legal capacity in Islamic Law, like in any other law, is essential for contracting parties. Where one or both of the contracting parties lacks capacity, there is no valid contract ab initio. This is treated in Chapter three. In this Chapter, legal capacity in its ramifications has been considered. A doctrine, unique only to Islamic Law, MAJLIS AL-AQD has been treated along the other segment of Chapter three that is, Formation of Performance of the Contract. Chapter four is divided into two: (1) Optional conditions in a Sale Contract and (2) Prohibited Forms of Sale Under Islamic Law. Many contracting parties to a sale do not resort to options open to them by Sharia while conducting sales. There are several options which if utilised will cure a lot of commercial imperfections and will minimise litigation. Of the prohibited forms of sales, some were JAHILIYYA in form and nature and others perpetrate injustice on one of the contracting parties or on the community in general. They are for that reason prohibited. They are so many but I only picked up the prominent ones, most of which, despite the prohibition, are embarked upon by some Muslims even today, for example, arresting goods and buying them from the villagers before getting to the market forum. Price, is the major topic discussed in Chapter five. This is another component part of subject matter of contract. Topical issues such as whether prices of goods in the market forum should be controlled or not and the Sharia view on some have been considered. Considered also are the relevance of the Price Control Board in the present market situation; the Role of the Hisba Institution and the Muhtasib. The Institution of Agency both under Islamic and the English Laws enjoys same recognition. The principles governing agency in both laws are generally the same. Fine distinctions in matters of details are noticeable on some points. Chapter six deals with Agency Contract in Islamic Law. Chapter seven is the last Chapter. It compares on fair notes the general principles of Islamic and English Sale of Goods Laws. This Chapter closes by considering the problems and prospects of Islamic Law in application in a heterogenous society with several laws governing the citizens.

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