Title

Majeed, Nudrat, Good Faith and Due Process: Lessons from the Shari'ah, 1 Arb. Intl'l 2004, at 97 et seq.

Social Networks

Content

Page 109

 

In his book Masadar al haqq,45the Egyptian jurist Al-Sanhuri identified five junctures in contract, which attract the application of good faith:

Page 111

[...]

In the Shari'ah, a treaty, like a contract, originates from agreement and consent and not necessarily from the observance of any specific form or procedure. Once the provisions of the treaty are agreed upon, the treaty becomes binding on both parties. The writing as well as the signing and the dating and in some cases the witnessing of the treaty are not necessarily legal prerequisites; they are merely to indicate that an agreement has been reached, as well as to record the actual terms of the treaty and its duration.54

Once the treaty is concluded Muslim authorities are strict in regard to the necessity of living up to its terms. The Qur'an urges the Muslims "not to break oaths after making them" [Qur'an XVI:93], and if the other party does not break them, then to fulfil their agreement to the end of their term [Qur'an IX:4]. Thus the principle pacta sunt servandais inherent in the conception of a treaty and is recognized by all Muslim jurist-theologians.

Footnotes

Referring Principles/Related Documents

Referring Principle: No. I.1.1 - Good faith and fair dealing in international trade
Referring Principle: No. IV.4.1 - Principle of informality
Referring Principle: No. IV.1.2 - Sanctity of contracts