International Business Law Comparative between Unidroit Principles and Islamic Law in the Al-Majala - Essay Example

?International Business Law Comparative between Unidroit principles and Islamic Law in the Al-Majala Unit Introduction The Jurisprudence of Islamic science contains a number of principles in divine legislature in reference to human affairs. The Jurisprudence of Islamic questions normally concern what they call the next world, which are rules that concern the world of worship. These rules are divided into punishments, domestic relations, and obligations. However, Allah is said to have declared the continuity of the world to the appointed time, which can only be possible by procreation. Man is weak in nature, where he is dependent on industries, clothing, housing, and food for his survival. In short, he is civilized and cannot live like animals, but rather in need of association and co-operation in order to work with fellow human beings to be able to live well (AL-Majalla 1-17). According to AL-Majalla (1-17), each person has the things which he likes and dislikes, and as a result, laws have been established in order to maintain justice and order which regard to, social relations, marriage and mutual help which is civilization in general. The first distribution Islamic Law in the Al-Majala, there is a sector which deals with domestic relations, second deals with civil obligation and the last deals with punishments. In that regard, this paper aims at comparing Business International Law between Unidroit principles and Islamic Law in the Al-Majala. Islamic business laws principles in the Al-Majala requires that any transactions should be conventional of particular transactions. The effects of contracts should also be given meaning and intention of phrases and words, which means that the subject sale of the contract had a right to redeem and pledge. To add to this, certainty is not proved by doubts, and a basic principle that everything remains as original as possible. For example, things should be left as they were, since time immemorial because there was no injury that existed back then. Additionally, liability freedom is an essential principle, and therefore, if an individual destroys another person’s property, as dispute arise in the name of the amount, the testimonial of the person who caused the destruction is heard, and the responsibility of the proof of any sum lies in the property owner, (AL-Majalla 1-17). AL-Majalla (1-17) also claims that Non-existence is an essential principle that applies to each right that comes up. For instance, partnership case of labor and capital, where a dispute comes up whether there is any profit made or not. Normally, the statement of the individual who has the responsibility of labour supply is heard, and the capital owner must have a proof of profits being made, because the main principle is profit non-existence. However, judgment is given in regard to matter that is approved at that time, unless any other proves are provided. Therefore, if the case is proved at that time, a specific item belongs to a person, then the ownership shall be said to be valid unless proven otherwise, which can invalidate the ownership. The Islamic principle in Al-Majala also requires that if there are any upcoming occurrences, they shall be considered as happenings, which happen at the near present. This means that, if any dispute comes up in regard to the time and causes of the event, then such events are referred to the time which is near to the present, unless proven that it relates to some other period. Words are also literally construed, and no attention is paid to any inferences in facts that are obvious claims. This is because, if the text seems to be clear, then there is no need for interpretation. In fact, in Islamic law, matter which has been contrary proved as analogy, which is legal, are not termed as analogy ways in regard to other matters. This means that legal interpretations do not destroy each other. Difficulties cause facility, and therefore, in case of any hardships there must be considerations. This can well be explained by Islamic terms of interdiction, loans, and transfer of debts that is seen to be derived from this principle, as well as indulgence and latitude that is shown by jurists based on this law (AL-Majalla, 1-17). If latitude is not afforded in difficult times, then the hardship appearance in any particular indulgence, matter and latitude should be shown, and injury should not be answered with injury, rather it should be removed. However, Article 9.3.7 concerning one of Unidroit principles, if a company decides to transfer its flight operations to another destination on airline B, but with the owner’s consent, the assigned contract from airline B goes to B. If Litigation arises, and the owner sues airline B in a court with its line of business, the Unidroit principle in Al-Majal requires that airline B can successfully appeal that the original contract has an arbitration clause. This is because the contract of the assignment in regard to the rights of the original airline, as well as the transfer of the original responsibility from airline A which is, the assignor to Airline B which is the assignee has taken place. In reference to defense from Article 9.3.7, the procedure should not affect the assignor, but should place the responsibility of the assignee in the same shoes as the obligee who is the assignor. As a matter of fact, then when the assignee decided to act against the assignor, he asserts all the payment rights and other performances in reference to the contract from the original assignor. This means that if the other party is exercising its rights, it may claim that all the performance and payment rights in regard to the contract to be transferred in opposition to the assignee. The securities that the performance grants are discharged and maintained in reference with Article 9.2.8 3 & 2, unlike in Islamic Law where the ownership rights still remains to the first owner of the contract. Another good example that brings out Unidroit principle is Article 9.3.7, where a contract service gives the late payment of the year by one customer and gives it to supplier A and is meant to bear a 10% interest, without the consent of customer X. This means that with X knowledge, A passes the responsibility of the contract to supply B. and when X fails to meet its obligations of paying the annual fees on time, the Unidroit principles requires that supply B can claim this interest.(Art.9.1.4). Additionally, if a certain company ordered the installation and construction of building equipments, where the levels performance have been agreed between both parties where the contract require damages, which are referred to as liquidated if the actual performance is not satisfactory. However, the Unidroit law requires that if the assigned company does not meet the point of performance in agreement with the contract, then the company can claim for liquidated damages. The above facts can also be explained as the ownership principles, but in this case, the company in question has given the customer a guarantee from the bank in order to cover for performance satisfaction. This contract does not only apply to obligations of supply B, unless the bank agrees to pass the contracts offer to it on behalf of the original assignee responsibilities. On the other hand, Islamic law requires that the description of an item in question as having no effect, but the case contrary if not present. For instance, if a seller decides to sell a specific horse color of a horse, and the grey horse is present at the meeting in the place of sale, stating that the person is selling a brown horse to other piasters. This offer is only to be held good and the brown color has no effect. However, if he sells horse which is grey in color and not present, thus describing it as brown, the Islamic law asserts that the good description is only to be held as good and therefore, no sale is concluded ( AL-Majalla 1-17). This is to mean that the question is repeated in an answer, and in the event of the question that can be referred to as affirmative, then the person who answers the question is said to have repeated it. The Islamic Law principle also argues that proof and contradiction are mismatched, but this does not mean that the judgment is invalidated in reference to the person who is contradicting. For instance, the law agrees that if a witness decides to contradict himself by going against the earlier evidence, the Islamic law argues that, there is no proof in such evidence. However, if a court gives the judgment in reference to the original evidence, then this judgment is not disregarded, but rather the witnesses pay the subject value of the judgment to the person whose judgment has been ruled (AL-Majalla 1-17). On the contrary, the Unidroit principle requires that the legal systems should agree with the passage of time influence based on the rights. There are two important systems under this principle, whereby one system requires that, the time passage to extinguish actions and rights, while the other system, the time passage only acts as a defense which is against the court actions. However, under this principle, the time period do not put out the rights, but rather operates as a defense. This means that, the governed rights of this principle only indicates that the right to own a performance right or non-performance remedy can be done away with (Art.10.2). The rights exercise, which affects the contract, can also be barred of the termination right or reduction place is agreed in the contract. A good example, is if a seller sells an item to a person, but upon delivery the ship which was supposed to deliver does not have the exact specifications which the contract contains, but only after three years is when the customer files for an action. Under art.10.1, the Unidroit law explains that the business person can claim that it is time barred, in reference To Art.10.2. However, the Islamic law claims that the subject sale of the redemption right to which a person sells the property to another person for a specific sum, is subject to the redeeming right, upon the price that is returned. The Islamic law considered that as permissible in the sense that the purchaser has the right to enjoy the sold properties. To add to this, there is a sale voidance in the two parties that have the right to cancel the sales. It is the ledge nature, in the fact that the person purchasing the property sells it to the third party (AL-Majalla 1-17). The Islamic law also claims that, the sale of the subject is the thing, which is sold, in terms of the disposed properties, in the sense that the object specified at the time of sale constitutes to the original objects. This is because the enjoyment is heard of specific objects, where the price is the ways of exchanging the property. The fixed price is also the price that was initially agreed and named upon by two parties, whether the real value that corresponds of less, (AL-Majalla 1-17). However, Unidroit principle, Art.10.2 claims that the fixed price of a property can change if both parties come to terms unlike in Islamic law where the mutual price cannot change, and does not matter if the real value corresponds to the new price or not. The value therefore, becomes the article real price. In terms of payments by installments, the Islamic law argues that the payment should contain the postponement of debts payment so that the debt can be paid at definite and deferent period. Art.10.3 in regard to Unidroit principles, the length of state in terms of a limitation period do not determine the time after the rights of exercise is barred. These times are affected by preconditions from the star of the period as well as circumstances, which affects the running. It also affected by the party’s agreement. Normally, in Al-Majala the autonomy of party in reference to a limitation period of great importance practically, in terms of periods, which are too short or long, that is tolerable if the parties decide to modify them to suit their needs. In Islamic law, the relevant factors are similar where the fundamental acceptance and offers of the object are the mutual agreement between the parties in question. Sales may be concluded by the party’s conduct that is evidence of acceptance and offer. The Unidroit principle in regard to the balance of interests between the obligor and obligee strikes a balance between their interests. An obligee in Al-Majal is supposed to have a chance, which is reasonable in order to pursue its rights. Therefore, this means that the he should not be denied from preventing from pursuing the right by time lapse before the right is claimed as due and can be implemented. Moreover, the obligee is supposed to have at least an idea or a chance to know the identity and right of the obligor. The obligee should also close the files after a specific time despite the knowledge of the obligor and a maximum period established. However, In Islamic law the acceptance of the oblige and obligor should agree with the offer exactly in regard to the subject or price matter (Art. 9.2.8 3 & 2). These two parties do not have the power to divide or separate the subject of price matter. It is necessary if the agreement is done by implication, which almost relates to limitation regime of the Unidroit principles that require the two systems to adapt the obligee policy and should not be barred before it gets the possibility of pursuing its rights, which is a result of constructive and actual knowledge. In this case, the obligee according to Unidroit principle has a responsibility to exercise its rights if is due and can be implemented. It also provides the limitation period maximum which starts at such dates (Art. 9.2.8 3 & 2). In Art.10.2, the facts of knowledge are distinguished from law of knowledge, where in Al-Majal the limitation general three-year period starts the day the obligee discovers the facts of the rights of the obligee which can be exercised. The facts in this case, are the meaning of facts provision to which the rights are formed, like contract formation, services undertaking and goods delivery. These facts that indicate that a claim or right has fallen should be known by the obligee. In Islamic law, the principles in Al-Majal require that the hire contracts to effectively take at a date, and it is not final, although it may not have come to terms. However, neither of the parties can cancel these contracts on the ground that they have come to force. This is on the basis of contracts which concerns hire. In order to conclude the execution of hire contracts, the Islamic law requires that the two parties should possess the capacity of perfect understanding and sound mind. The acceptance and hire offer should agree with the parties, and must have met at the same place and time, in case of any sales (AL-Majalla 1-17). The Unidroit principle in Art.10.3 requires that the restitution to be barred in a three year period, as the company has to know of its payment in terms of when the termination of the contract as well the claim to repay it in advance. Any error of laws in regard to legal effects of the termination cannot pardon the obligee which includes the legal advice if the party is uncertain which includes the legal advice is uncertain of the circumstances of the legal effects. The acceptance of the two contracting parties agrees exactly with contracting parties that agree exactly with an offer of the other contracting party, which regard to the subject or price matter. The parties do not have the power to divide or separate the subject or price matter. In reference to the Islamic law, the contract of the sale can be concluded with an important condition, that both condition and sales are valid. A good example is when the vendor decides not to sell the rights of a subject until he gets the payment price. This condition is not a sale prejudice, but rather an important condition of the contract. The sale is therefore, concluded to be the condition of the subject that is to assure the contract performance, and both condition and sale are legal. However, if the sale subject of the case that is subject to a condition does not benefit the party, the sale is termed as legal, while the condition void. In Unidroit principle, Art.6.1.1 the rights should be exercised in terms of the responsibility of the contract owner not required. The claim of the creditor to make payments of the loan is formed on the contract, and may come up when the contract is being concluded, or rather loan payment to the debtor, then the claim of the repayment comes later. However, the rights many not be implemented if the owner has evidence. On the other hand, the circumstances and nature of the price in Islamic law should be named as the point of sale, especially if the things being sold are not known, and the sales void. When the parties come up with a contract, expressing the price nature, then payment is made in any form of currency that is mentioned in the time of sale. Valid sales can be concluded, where the price payment may be made in installments or deferred. A vendor can also increase the price of things sold after the contract conclusion. Additionally, if the purchaser agrees to this increase at the time of meeting for both parties, he is allowed by Islamic law to increase the price, while the vendor may not go to his offer. The purchaser’s acceptance after any meeting is considered invalid. However, if the purchaser increases the fixed price after sale conclusion, while at the same time the vendor agrees the increase during the meeting when the offer is made or suggested, he also has the right to insist on such increases, and therefore, the purchaser cannot go back to his previous offer. Moreover, the Unidroit principle, under the Art.10.2 (318), the claim limitation period for payments does not begin until the withhold right of the payment period is extinguished by malfunctioning cure. The obliged person exists in any events, regardless of whether it ought or knew to have the facts that came up with such rights, or prevented from exercising the ten years that are supposed to be exercised. The maximum objective of the ten year period is prevention of litigation and peace restoration where evidence does not exist. To compare the above principle with the Islamic law in Al-Majal, the obligee is summoned to appear in court upon the plaintiff application if he fails to pay the exercise the years required. Conclusion The legal principles of Unidroit and Islamic in regard to International business law are based on Islamic law and applied in all most all the Arab countries that were under the rule of Ottoman. However, the Al Majala is still considered a very vital reference in Islamic law. The principles of Islamic and Unidroit can be explained in terms of opinions, which refute one another, and therefore, explained to mean that both principles can be judged by their own advantages. As earlier indicated the Al-Majala requires that any transactions should be conventional of particular transactions. The effects of contracts should also be given to meaning and intention of phrases and words, which means that the subject sale of the contract has a right to redeem and pledge. The securities that the performance grants are discharged and maintained in reference with Art. 9.2.8 3 & 2, unlike in Islamic Law where the ownership rights still remains to the first owner of the contract. Work Cited AL-Majalla(The Ottoman Courts Manual (Hanafi), Pdf, Retrieved from: http://www.iiu.edu.my/deed/lawbase/al-majalle/index.html(12/31/2000 4.28: 37 Pm, Pg 1-17. Articles 9.3.6 to Article 10.1 on Unidroit Principles Read More