이슬람법상 계약의 성립과 효력에 관한 연구
Study on the Contract Formation and its Effect in Islamic Law
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Islamic law has been formed one of the world's largest legal systems along with common law and civil law. It is quite important that person who wants to trade or negotiate with Muslims understands their commercial contract laws in time of rapid globalization. Because a contract is one of most important legal relationships in any other countries. That is why the paper forcuses on the similarities and difference of commercial contracts between Islamic countries and non-Muslim countries. Because Islamic law(Sharia) reaches all aspects of life, it necessarily extends to all transactions, including commercial transactions and contracts, in Muslim societies. The Sharia has two prerequisites for the formation of a contract. They are (i) offer(ijab) and (ii) acceptance(kabul). But consideration is not considered important as much as common law does. A contract can be made through sings and gestures as well as conduct in certain circumstances in Sharia. The purpose of the contract must be lawful and absence of duress just like civil law and common law. That is, because of the importance of equality in Islamic contract law, parties have the right to void the contract made by riba or gharar. It is also important to know that the general rule in Islamic law is that any contract should be reduced to a written document, and if that is not possible, witnesses should be present at the time of contract formation. Furthermore, the legal principles underlying Sharia are derived in the Quran, the sunna, ijma and the qiyas. They are also important components of the Islamic contract law for its interpretation and application.
Abstract
Islamic law has been formed one of the world's largest legal systems along with common law and civil law. It is quite important that person who wants to trade or negotiate with Muslims understands their commercial contract laws in time of rapid globalization. Because a contract is one of most important legal relationships in any other countries. That is why the paper forcuses on the similarities and difference of commercial contracts between Islamic countries and non-Muslim countries. Because Islamic law(Sharia) reaches all aspects of life, it necessarily extends to all transactions, including commercial transactions and contracts, in Muslim societies. The Sharia has two prerequisites for the formation of a contract. They are (i) offer(ijab) and (ii) acceptance(kabul). But consideration is not considered important as much as common law does. A contract can be made through sings and gestures as well as conduct in certain circumstances in Sharia. The purpose of the contract must be lawful and absence of duress just like civil law and common law. That is, because of the importance of equality in Islamic contract law, parties have the right to void the contract made by riba or gharar. It is also important to know that the general rule in Islamic law is that any contract should be reduced to a written document, and if that is not possible, witnesses should be present at the time of contract formation. Furthermore, the legal principles underlying Sharia are derived in the Quran, the sunna, ijma and the qiyas. They are also important components of the Islamic contract law for its interpretation and application.
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