By Maha-Hanaan Balala
ISBN-10: 184885076X
ISBN-13: 9781848850767
Some of the rules ordinary in glossy Islamic agreement legislation and advertisement perform stay almost like these defined via the Qur'an and the Prophet Muhammad, and expounded through students of jurisprudence way back to the thirteenth century, regardless of the development in time and class of business interplay. Hanaan Balala the following presents an research of the basic rules underlying Islamic legislations and trade compared to their universal legislation equivalents within the English-speaking global. She seeks to attract parallels (and variations the place acceptable) to facilitate the expansion and improvement of Islamic advertisement and monetary legislations around the globe.
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Extra resources for Islamic Finance and Law: Theory and Practice in a Globalized World (International Library of Economics)
Sample text
39 He continues to say: The question to be decided is not whether the transaction would have the effect of avoiding the relevant statute – for parties are free to organise their affairs in any such way as to ensure they escape the legislation they consider burdensome – but what is its legal nature … The external route is to show that the document does not record the real agreement between the parties – in other words, that the document is a sham and is designed to conceal the true nature of the transaction.
8 Chief among these rules are that any given transaction should be devoid of riba or gharar,9 both of which are defined briefly below and are dealt with in separate (ensuing) chapters of this book. It is a concern of Islamic law of contract and finance that no party suffers undue burden in any given transaction when it is possible, through care and proper investigation, to dispel risks of riba and gharar. Therefore, the principle of contractual fairness counterbalances the principle of permissibility with the objective of attaining social justice or equity between the parties.
18 islamic FINANCE AND law Second, a comparison with the common law is undertaken because it is the law most frequently used in drafting the legal and contractual documents in a securitisation transaction in Islamic finance (as is true for most global financial transactions). This is because the common law is generally more progressive and permissive than the civil law. 7 It, therefore, makes greater sense to compare the principles of Islamic law with the common law; a comparison which enables the examination of parallels that provide insight into potential trajectories for Islamic finance.