scholarly journals Comparing the Contract Between Islamic and Indonesian Laws

2020 ◽  
Vol 1 (2) ◽  
pp. 145
Author(s):  
Atharyanshah Puneri
Keyword(s):  
Islamic Law ◽  
Contract Law ◽  
Civil Code ◽  
Crucial Element ◽  
The Common ◽  
Similarities And Differences ◽  
The Law

In the common transaction, the contract plays a crucial element made between the parties with their consent. Its importance reflects that the contract realizes the parties' agreements and the contract binds the parties mentioned in the agreements. This study aims to review the contract law by analyzing the law of contract from two different laws, which are Islamic and Indonesian laws. This study finds some similarities and differences between Islamic and Indonesian laws when they come to governing contracts. Every contract in Islamic law must comply with sharia aspects, and the law derived from the Quran and Hadith. Meanwhile, based on Indonesian law, a contract can be deemed legal when it complies with the requirements stated in Article 1320 Indonesian Civil Code, and every Contract in Indonesian Law comes and is derived from the Indonesian Civil Code. KEYWORDS: contract law, Islamic law, Indonesian law.

scholarly journals HIBAH SEMUA HARTA KEPADA ANAK ANGKAT (TELAAH KOMPARASI ANTARA KUH PERDATA DAN KHI)

2020 ◽  
Vol 8 (1) ◽  
pp. 109-140
Author(s):  
Nor Mohammad Abdoeh
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Human Beings ◽  
Normative Approach ◽  
Qualified Person ◽  
Similarities And Differences ◽  
The Law ◽  
The Difference

One of the ways that human beings use to obtain treasure is grants. The grant process cannot be separated from the limit of the donated property. In reality, many people grant his wealth to his adopted son with all his possessions. It is a matter of the adopted child's position in the law. The purpose of this paper is to explain how the views of the Civil Code and the Islamic Law about grant and that comparation. The approach of this research with normative approach, by investigating whether it is according to the norms that apply. The conclusion of this research, that the rules of grant in the Civil Code and KHI actually have similarities and differences. The similarity of the two rules is seen in defining the meaning of the grant, its elements and similarity in judging a qualified person to do the grant. The difference of the rules are both seen in the share of grant distribution. The portion in KHI is a maximum of 1/3. The existence parts and restriction of the treasures in the grant is nothing but to protect from the tendency of the benefactor to ignore their family. While in the Civil Code based on Legitime Portie

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Personalized Legal Areas

2021 ◽  
pp. 61-84
Author(s):  
Omri Ben-Shahar ◽  
Ariel Porat
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Standards Of Care ◽  
Criminal Sanctions ◽  
The Common ◽  
The Law

This chapter illustrates personalized law “in action” by examining it in three areas of the law: standards of care under the common law tort doctrine of negligence, mandated consumer protections in contract law, and criminal sanctions. In each area, the chapter examines personalization of commands along several dimensions. In tort law, standards of care could vary according to each injurer’s riskiness and skill, to reduce the costs of accidents. In contract law, mandatory protections could vary according to the value they provide each consumer and differential cost they impose on firms, to allocate protections where, and only where, they are justified. And in criminal law, sanctions would be set based on what it takes to deter criminals, accounting for how perpetrators differ in their motives and likelihood of being apprehended, with the potential to reduce unnecessary harsh penalties.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 467-492
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Legal Basis ◽  
Breach Of Contract ◽  
General Terms ◽  
Force Majeure ◽  
Common Purpose ◽  
Legal Position ◽  
The Common ◽  
The Law ◽  
Legal Consequences

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.

scholarly journals PERKEMBANGAN PERJANJIAN DALAM PRAKTIK PERDAGANGAN (PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF)

JURISDICTIE ◽  
2017 ◽  
Vol 7 (2) ◽  
pp. 219
Author(s):  
Cindawati Cindawati
Keyword(s):  
Islamic Law ◽  
Human Life ◽  
Contract Law ◽  
Civil Code ◽  
Public Order ◽  
Freedom Of Contract ◽  
Positive Law ◽  
Legal Consequences

Agreement in human life to protect the rights and obligations are balanced. Differences in Islamic Law Perspective: Halal, agreed, able, without coercion, consent and Qobul. While the perspective of Positive Law: agree, capable, certain things, certain circumstances in accordance with Article 1320 of the Civil Code. The equation embracing principle of freedom of contract (al-Hurriyah) Islamic law is based on freedom of contract and volunteerism of each of the parties to a transaction (Q.S.An-Nisa ', 29). Give freedom to every person doing contract as desired, specify its legal consequences are religious teachings. The development of standard agreements in practice must be based on Sharia Principles provide benefits both parties, within the limits of lawful and unlawful, and the limits of public order and contract law, the provisions of Islamic law which is original. Perspective Positive Law: Principles embraced Open, gives the broadest freedom has entered into agreements contain anything, does not violate public order and morality. Rapid trade development followed the model "Standard Agreement". Business actors prepare raw clauses in the Agreement and can be accepted by the community. Raw agreements as a form of efficiency, the parties benefit and advantage to both parties.

scholarly journals A Comparative Exposition of the Law of Husband and Wife in terms of Islamic Law, South African Law and the Law of England and Wales

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 704-750
Author(s):  
Razaana Denson
Keyword(s):  
Comparative Analysis ◽  
South African ◽  
Islamic Law ◽  
Primary Concern ◽  
Bill Of Rights ◽  
Legal Systems ◽  
Similarities And Differences ◽  
English Law ◽  
The Law ◽  
Personal Law

The primary concern of this article is a comparative analysis of marriage law in three legal systems – namely, Islamic law, South African law and English law. The similarities and differences between these legal systems are highlighted. The comparative analysis demonstrates that although there are similarities in the three legal systems, the differences outweigh the similarities. This begs the question whether Islamic law (Muslim personal law in general and family law in particular) can be recognised and accommodated and implemented in the South African and English legal systems (both constitutional democracies) without compromising the principles of Islamic law, while at the same time upholding the rights contained in the Bill of Rights. To this end, a comparative analysis is undertaken of the law of marriage that entails a discussion, inter alia, of betrothal (engagement), the legal requirements for a marriage, as well as the personal and proprietary consequences of a marriage as applicable in Islamic law, South African law and English law.

scholarly journals Transfer of property based on property law rules and contract law rules under forthcoming Kosovo draft-civil code

2021 ◽  
Vol 42 (1) ◽  
pp. 151-165
Author(s):  
Haxhi Gashi ◽  
Bashkim Preteni
Keyword(s):  
Civil Law ◽  
Contract Law ◽  
Civil Code ◽  
Property Law ◽  
Transfer System ◽  
Abstract System ◽  
Causal System ◽  
The Law

In most civil law jurisdictions, the contract is the most used derivative title for the transfer of ownership (movable and immovable property). Very often, the law of property and law of contract are seen as distinct and one can envisage their role from different legal perspectives. This is closely connected with the type of transfer system based on whether the (Austrian) causal system, (German) abstract system or (French) consensual system is applicable. Kosovo is in the process of civil law codification and the Kosovo Draft-Civil Code which has followed the application of the causal system of transfer of property and such an above mentioned interaction of these two branches of civil law is mandatory, and only with a common survey can the contractual transfer of property be illustrated. The aim of this paper is to focus solely on the influence of contract law rules in connection with the acquisition of ownership over movable and immovable property determined by Kosovo Draft-Civil Code.

scholarly journals Crime under Islamic Law: Definition, Relation with Sins, and Classification

Islamovedenie ◽  
2021 ◽  
Vol 12 (3) ◽  
pp. 89-101
Author(s):  
Dzhamali Tofikovich Kuliev ◽  
Keyword(s):  
Islamic Law ◽  
Legal Culture ◽  
Common Language ◽  
Legal Concept ◽  
The Common ◽  
The Law ◽  
Legal Concepts ◽  
The Right

This article appears to be the result of extensive research dedicated to the question of the correct use of the common language while studying Islamic legal culture, and particularly the con-cepts of sin and crime. Consisting of the Quran and Sunnah of the Prophet Muhammad, Sharia turns out to be the basis for fiqh and Islamic law. The latter is a legal phenomenon implying differ-ent legal concepts such as crimes. As we can see from the legal works analysed, the authors often synonymise the terms ‘sin’ and ‘crime’; at the same time it is strongly recommended to differentiate these terms in the context of Sharia, fiqh and Islamic law. However, in our opinion, it is necessary to distinguish between these two categories, since Sharia that deals only with sins is a set of reli-gious norms not relevant to law and jurisprudence. There is no doubt that Sharia norms can be re-flected in the law, but it is just another evidence of Islamic law to be based on Sharia. Quite the con-trary, crime is a legal concept established by legislation. There are times when Sharia, legislation and legal doctrines coincide, and the same act can be considered both as a sin and as a crime, but it does not mean that they are identified. Thus, the novelty of the study consists in the distinction between the concepts of ‘sin’ and ‘crime’ in Sharia and Islamic Law. Besides, having finished the research in such categories as ‘qisas’, ‘diya’ and ‘tazir’, the author comes to a conclusion that the states which hold themselves out to be ‘Islamic’ ought to include these types in their legislation. Elsewise, such states do not have the right to be called ‘Islamic’.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

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