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Frustration of Performance of Contracts: a Comparative and Analytic Study in Islamic Law and English Law

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Frustration of Performance of Contracts: a Comparative and Analytic Study in Islamic Law and English Law Frustration of Performance of Contracts: A comparative and Analytic Study in Islamic Law and English Law. Thesis for the Degree of Doctor of Law By Ibrahim Saad Alhowaimil Supervisor Prof. Dr. Holger Sutschet Brunel University School of Law 2013 i Declaration I declare that the work presented in this thesis is my own except where it is stated otherwise. The copyright of this thesis rests with the author. No quotation from it should be published without his prior written consent and information derived from it should be acknowledged. ii ACKNOWLEDGEMENTS First and foremost, all praise and thanks be to Allah, the Almighty God, without his help and guidance the completion of this work would not have been possible. I would like to express my deepest gratitude to my supervisor, Professor. Dr. Holger Sutschet throughout this research for his constant support and dedication over the years and his ideas, guidance, and encouragement, and without whose highly appreciated efforts, constructive criticisms and assistance, this thesis would not have been completed successfully. My vocabulary is inadequate to express how grateful I am to him. I would like to thank my mother, who I am greatly indebted to for all her support and love, who raised me up and gave me both the determination and confidence to pursue a path that led me to achieve my goals in life. I am also grateful to my loving wife Huda and daughters who have supported me and who waited so patiently and eagerly for this research to be completed. I am also obliged to thank all other faculty staff at the Department of Law at Brunel University their strong support. May deepest thanks and gratitude to all who have helped me in the course of my research. iii ABSTRACT This thesis is an assessment of the position of Islamic law and English law regarding the doctrine of the frustration of the contract. The thesis gave in the first general view about Islamic law and Saudi legal system, also about the contract in Islamic law in general. This study provides a detailed and critical account of the principles of frustration of contract law which operate under Islamic law and English law, where appropriate, identifies and critically evaluates the differences between the principles of frustration of contract which operate respectively under Islamic law and English law and to recognize the effect of the frustration on the performance of the contract. In the case of the absence of theory of frustration of contract in Islamic Law, an attempt will be made to create a complete doctrine of frustration of contract. Researcher discussed the frustration of contract in Islamic Law. In the case of the absence of theory of frustration of contract in Islamic Law, an attempt will be made to create a complete theory of frustration of contract in Islamic law. This is recognised owing to the fact that most cases of the application of frustration fall under the doctrine of impossibility. Impossibility can be regarded as taking place ‘when there supervening events without default of either party and for which the contract makes no sufficient provision which so significant changes the nature, if the cases where impossibility relates to the subject- matter of contracts or relates to the parties, subjective or objective impossibility. This study discusses the issue of Frustration of contract due to external factors covering cases of legal impossibility. This study examines the discharge of contract if there is circumstances do not make the performance impossibility but became difficult to perform such as impracticability and frustration of purpose. It will also look in some detail at the limitations and narrow scope of the doctrine of frustration, and also discuss contractual parties’ sometimes preferred alternatives, such as drafting force majeure clauses and hardship clauses. iv TABLE of CONTENTS ACKNOWLEDGEMENTS ......................................................................................................................... iii ABSTRACT ................................................................................................................................................. iv TABLE OF CASES ...................................................................................................................................... 7 A. English Cases: ...................................................................................................................................... 7 B. Saudi Cases ........................................................................................................................................ 12 TABLE OF STATUTES ............................................................................................................................. 14 CHAPTER ONE ......................................................................................................................................... 15 General Introduction ................................................................................................................................... 15 1.1 Preface............................................................................................................................................... 15 1.2 Methodology ......................................................................................................................................... 21 1.3 The Aims of the Study ...................................................................................................................... 24 1.4 Difficulties Facing the Study ............................................................................................................ 25 CHAPTER TWO ............................................................................................................................................ 26 Introduction to Islamic law and Saudi Legal System.............................................................................. 26 2.1 Introduction ................................................................................................................................. 26 2.2 The Concept of Shari’ah ............................................................................................................. 27 2.2.1 The differences between Shari’ah and Fiqh .............................................................................. 29 2.3 Islamic Legislation ....................................................................................................................... 31 2.4 The Sources of Islamic Law ........................................................................................................ 38 2.4.1 Primary Sources .................................................................................................................. 38 2.4.2 Secondary Sources .............................................................................................................. 42 2.5 The Principle of (Ijtihad) in Islamic law. .................................................................................... 47 2.6.The Concept of Hisbah (or Hisba) in Islamic law ............................................................................... 50 2.6.1 The role of the Hisbah (or Hisba) in Islamic law ........................................................................ 51 2.7 Four Schools of Islamic Law ............................................................................................................ 54 2.7.1 Hanafi School ...................................................................................................................... 54 2.7.2 Maliki .................................................................................................................................. 54 2.7.3 Shafi’i .................................................................................................................................. 55 2.7.4 Hanbali ................................................................................................................................ 55 2.8 The Categories of Islamic Law (Figh) Jurisprudence ................................................................. 56 1 2.9 The legal system in Saudi Arabia ........................................................................................................... 58 2.9.1 General Background about Saudi Arabia ............................................................................ 58 2.9.2 Legal Judiciary System (General Guardianship) ................................................................ 60 2.9.4 Administrative Judicial System (Board of Grievances) ...................................................... 65 Chapter Three.............................................................................................................................................. 68 The Theory of Contract Law in Islamic Law .............................................................................................. 68 3.1 Introduction ................................................................................................................................. 68 3.2 The Definition and Concept of the Contract under Islamic Law ................................................ 69 3.3 The Development of Contract Law under Islamic Law ................................................................... 71 3.4 Freedom of Contract under Islamic Law .................................................................................... 73 3.5 Formation of Contract ................................................................................................................
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