Ḥawādith Ṭāri'a in Islamic commercial law

• Main Author: Ruslan, Md Khalil
• Published: University of Edinburgh 2000
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.661465

In the face of the desire to re-establish the <i>sharī^ca</i> in commercial activity, study of new perspectives in <i>fiqh</i> is a crucial part of modern Islamic legal thought. This study deals with <i>hawādith tāri'a</i>, one of the new legal terms in <i>fiqh </i>which is concerned with the status of a contract in commercial transactions. Despite the fact that <i>hawādith tāri'a</i> is usually considered in Western sources as coming under the law of contract, this study is confined to the Islamic legal category of commercial transactions. Therefore, this study begins by considering the law of contract and its connection with the Book of Sales. As a theory in contemporary Islamic legal circles, <i>hawādith tāri'a</i> addresses exceptional circumstances in commercial contracts which render the performance of the contractual obligation onerous. This study is concerned with understanding the sources of the theory, particularly the <i>hadīths </i>of the Prophet (peace the upon him) dealing with <i>wad^c al-jawā'ih</i>, where the foundation of the theory can be seen to have its origins. The significance of <i>wad^c al-jawā'ih</i>, a classical doctrine regarding calamities that occur to crops after the completion of a sales contract, is examined at length, together with the classical legal texts on the sale of fruit before its ripeness is evident (<i>bay^c al-thimār qabla an yabduwa salāhuhā</i>). Also, the doctrine of <i>^cudhr</i>, which concerns being excused in the performance of contractual liability in hiring and leasing, is studied. From all of the above, the classical underpinnings of the concepts of <i>hawādith tāri'a</i> become abundant evident.