Academic journal article Asian Social Science

Stipulation in Contract from Islamic and Malaysian Legal Perspectives

Academic journal article Asian Social Science

Stipulation in Contract from Islamic and Malaysian Legal Perspectives

Article excerpt

Abstract

Generally, a subject of legal obligation is bound to perform his/her obligation regardless of whether the source of the obligation comes from the Lawgiver or is initiated by the subject of the law himself. Contract is a source of obligation which is initiated by a subject of legal obligation. Therefore, a person who makes a contract is responsible to the contract he concludes. Thus he is obliged to observe and perform his duty as agreed upon in the contract. In some cases, additional conditions or stipulations are included in the contract. Theses stipulations or conditions present a form of obligation that has to be complied with by contracting parties. The purpose of this study therefore, is to examine whether additional conditions can be added into the contract from the perspective of Islamic law and Malaysian law or otherwise. Thus, this study attempts to elaborate on the concept of stipulations its nature and types from Islamic and Malaysian laws points of view. The study also analyzes the similarities and differences of the concept of stipulations between both laws. The study uses comparative and analytical methods. The finding of the study shows that the term of stipulation and its types in Islamic law and Malaysian law are similar. Therefore, it is suggested that the contracting parties before making any stipulation to their contract to seek the advice of experts in order to make sure their contract is according with the law and is Shari'ah compliant.

Keywords: stipulations, obligation, Islamic, law

1. Introduction

A subject of legal obligation is legally obliged to perform his duty which is imposed upon him. It is the rule of an obligation, whether it is originated from the textual sources of the law or is imposed by a subject of the law himself to perform it. There are many sources of obligation; contract is portrayed as one of such source in the legal framework. Therefore, any person making a contract is responsible to observe and fulfill the terms of the contract that he or she has concluded. In other words, he/she is obliged to observe and perform his duty as agreed under the terms of contract. In some cases, parties to the contract put some additional conditions or stipulations within the framework of the contract they intend to conclude for instance, when A says to B, "I will pay you RM500.00 if you find my ring." Then B agreed to it. The stipulation or condition which is mentioned in the contract constitutes a form of obligation that obliged the parties to obverse it.

Thus, this paper attempts to delineate the theory of stipulation (short) under Islamic Law of obligation in comparison with the common law. Definition of the stipulation, types of stipulation and the effect of obligation are also discussed in this paper.

2. Authorities of Stipulation under Islamic Law and Common Law

Islamic Law as well as the Common Law recognizes the theory of stipulation (short). Under the Islamic Law, the authorities of the theory of stipulation (short) can be found in the Quran and also in the Hadith. Allah said in the Holy Quran, "O you who believe! Fulfdl your contracts." (Note 1)

Besides this Qur'anic verse, there is a Hadith in which it is stated, "Muslims are bound by their conditions except a condition which allows what is prohibited or prohibits what is lawful." (Note 2)

In addition to these authorities there are others authorities regarding the principles of obligation, either stated in the primary sources of Islamic Law i.e. the Quran and Sunnah or stated in the secondary sources of Islamic Law such as the Majallai al-Ahkam al- Adliyyah. Many countries in the Middle East apply the principles of obligation as stated in the theory of stipulation and is well recognized under the common law, the Section 38 of Contracts Act 1950 provides that "The parties to a contract must either perform, or offer to perform their respective promises, unless the performance is dispensed with or excused under this Act, or of any other law. …

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