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13 Arab L.Q. 336 (1998)
Dissolution of Contract in Islamic Law

handle is hein.journals/arablq13 and id is 344 raw text is: DISSOLUTION OF CONTRACT IN ISLAMIC LAW
Muhammad Wohidul Islam*
In the Islamic legal system, like other legal systems of the world, certain
formalities and substantive elements are essential for juristic acts to become legally
binding on the parties. Classical Muslim jurists developed a clear concept of
juristic acts which produced a legal effect. Contractual transactions, whether
written or unwritten, constitute the vast majority of juristic acts. That being so,
Muslim jurists of various classical schools stipulated a clearly defined idea of the
conditions and requirements of validity and binding force in juristic transactions
concluded between parties. These essential conditions and requirements of
substantive and procedural law now provide the criteria for void, valid, binding
and enforceable elements of contractual transactions. Muslim jurists laid down a
set of criteria for distinguishing between essential conditions on which the valid
conclusion of the contract depended, and those which were regarded as less
fundamental and which might affect its binding force on only one of the parties.
Islamic law, taking into account the nature of the legal requirements which have
not been complied with, laid down a distinction between absolute (mutlaq) and
relative (nisbt) nullity and between contracts which were void ab initio, and
contracts which were merely voidable. Muslim jurists went further and spoke of
non-existence of the contract as a radical form of nullity under which the contract
was considered as if it had never taken place. They also recognised, in contrast to
the above category, contracts the effects of which were merely suspended
(mawquf ala al-ijazat), depending on the choice of the party whose intention was
not validly expressed, and for whose protection the nullity was prescribed.1
I shall attempt to outline the principles and rules relating to dissolution of
contract under Islamic law on various possible grounds. A contracting party might
sometimes not receive the performance which was due to him because of the failure
of the other contracting party to honour his side of the bargain. Thus, contractual
liability arises, generally speaking, when one of the contracting parties fails to
perform his contractual obligation. On the other hand, the fulfilment of a
contractual undertaking may be disturbed or permanently frustrated as a result of
* LLB (Hons); Master of Comparative Law (MCL), International Islamic University Malaysia.
Saba Habachy, The System of Nullities in Muslim Law, The American Journal of Comparative
Law, Vol. 13, 1964, p. 61, at pp. 62-63.
Arab Law Quarterly, [1998] 336-368

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